Trade Practices Amendment (Australian Consumer Law) Act (No.
2) 2010
No. 103, 2010
An Act to amend the Trade Practices Act 1974 and the Australian
Securities and Investments Commission Act 2001, and for other purposes
[Assented to 13 July 2010]
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Trade
Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
|
Commencement
information
|
|
Column 1
|
Column 2
|
Column 3
|
|
Provision(s)
|
Commencement
|
Date/Details
|
|
1. Sections 1 to 3 and anything in this Act not
elsewhere covered by this table
|
The day this Act receives the Royal Assent.
|
13 July 2010
|
|
2. Schedules 1 to 5
|
The later of:
(a) the start of 1 January 2011; and
(b) immediately after the commencement of Schedule 1 to
the Trade Practices Amendment (Australian Consumer Law) Act (No. 1)
2010.
However, the provision(s) do not commence at all if the
event mentioned in paragraph (b) does not occur.
|
1 January 2011
|
|
3. Schedule 6, items 1 to 46
|
At the same time as the provision(s) covered by table item 2.
|
1 January 2011
|
|
4. Schedule 6, item 47
|
The later of:
(a) the same time as the provision(s) covered by table item 2;
and
(b) immediately after the commencement of Schedule 1 to
the Broadcasting Legislation Amendment (Digital Television) Act 2010.
However, the provision(s) do not commence at all if the
event mentioned in paragraph (b) does not occur.
|
1 January 2011
|
|
5. Schedule 6, items 48 to 141
|
At the same time as the provision(s) covered by table item 2.
|
1 January 2011
|
|
6. Schedule 6, item 142
|
The later of:
(a) the same time as the provision(s) covered by table item 2;
and
(b) immediately after the commencement of section 3 of
the Trans‑Tasman Proceedings Act 2010.
However, the provision(s) do not commence at all if the
event mentioned in paragraph (b) does not occur.
|
|
|
7. Schedule 6, items 143 to 191
|
At the same time as the provision(s) covered by table item 2.
|
1 January 2011
|
|
8. Schedule 7
|
At the same time as the provision(s) covered by table item 2.
|
1 January 2011
|
Note: This table
relates only to the provisions of this Act as originally passed by both Houses
of the Parliament and assented to. It will not be expanded to deal with
provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—The Australian Consumer Law
Trade Practices Act 1974
1 Schedule 2
Repeal the Schedule, substitute:
Schedule 2—The Australian
Consumer Law
Note: See Part XI.
Chapter 1—Introduction
1 Application of this Schedule
2 Definitions
3 Meaning of consumer
4 Misleading representations with respect to future
matters
5 When donations are treated as supplies or acquisitions
6 Related bodies corporate
7 Meaning of manufacturer
8 Goods affixed to land or premises
9 Meaning of safety defect in relation to goods
10 Asserting a right to payment
11 References to acquisition, supply and re‑supply
12 Application of Schedule in relation to leases and
licences of land and buildings
13 Loss or damage to include injury
14 Meaning of continuing credit contract
15 Contraventions of this Schedule
16 Severability
17 References to provisions in this Schedule
Chapter 2—General protections
Part 2‑1—Misleading or deceptive conduct
18 Misleading or deceptive conduct
19 Application of this Part to information providers
Part 2‑2—Unconscionable conduct
20 Unconscionable conduct within the meaning of the
unwritten law
21 Unconscionable conduct
22 Unconscionable conduct in business transactions
Part 2‑3—Unfair contract terms
23 Unfair terms of consumer contracts
24 Meaning of unfair
25 Examples of unfair terms
26 Terms that define main subject matter of consumer
contracts etc. are unaffected
27 Standard form contracts
28 Contracts to which this Part does not apply
Chapter 3—Specific protections
Part 3‑1—Unfair practices
Division 1—False or misleading representations etc.
29 False or misleading representations about goods or
services
30 False or misleading representations about sale etc. of
land
31 Misleading conduct relating to employment
32 Offering rebates, gifts, prizes etc.
33 Misleading conduct as to the nature etc. of goods
34 Misleading conduct as to the nature etc. of services
35 Bait advertising
36 Wrongly accepting payment
37 Misleading representations about certain business
activities
38 Application of provisions of this Division to
information providers
Division 2—Unsolicited supplies
39 Unsolicited cards etc.
40 Assertion of right to payment for unsolicited goods or
services
41 Liability etc. of recipient for unsolicited goods
42 Liability of recipient for unsolicited services
43 Assertion of right to payment for unauthorised entries
or advertisements
Division 3—Pyramid schemes
44 Participation in pyramid schemes
45 Meaning of pyramid scheme
46 Marketing schemes as pyramid schemes
Division 4—Pricing
47 Multiple pricing
48 Single price to be specified in certain circumstances
Division 5—Other unfair practices
49 Referral selling
50 Harassment and coercion
Part 3‑2—Consumer transactions
Division 1—Consumer guarantees
Subdivision A—Guarantees relating to the supply of goods
51 Guarantee as to title
52 Guarantee as to undisturbed possession
53 Guarantee as to undisclosed securities etc.
54 Guarantee as to acceptable quality
55 Guarantee as to fitness for any disclosed purpose etc.
56 Guarantee relating to the supply of goods by
description
57 Guarantees relating to the supply of goods by sample
or demonstration model
58 Guarantee as to repairs and spare parts
59 Guarantee as to express warranties
Subdivision B—Guarantees relating to the supply of
services
60 Guarantee as to due care and skill
61 Guarantees as to fitness for a particular purpose etc.
62 Guarantee as to reasonable time for supply
63 Services to which this Subdivision does not apply
Subdivision C—Guarantees not to be excluded etc. by
contract
64 Guarantees not to be excluded etc. by contract
Subdivision D—Miscellaneous
65 Application of this Division to supplies of gas,
electricity and telecommunications
66 Display notices
67 Conflict of laws
68 Convention on Contracts for the International Sale of
Goods
Division 2—Unsolicited consumer agreements
Subdivision A—Introduction
69 Meaning of unsolicited consumer agreement
70 Presumption that agreements are unsolicited consumer
agreements
71 Meaning of dealer
72 Meaning of negotiation
Subdivision B—Negotiating unsolicited consumer agreements
73 Permitted hours for negotiating an unsolicited
consumer agreement
74 Disclosing purpose and identity
75 Ceasing to negotiate on request
76 Informing person of termination period etc.
77 Liability of suppliers for contraventions by dealers
Subdivision C—Requirements for unsolicited consumer
agreements etc.
78 Requirement to give document to the consumer
79 Requirements for all unsolicited consumer agreements
etc.
80 Additional requirements for unsolicited consumer
agreements not negotiated by telephone
81 Requirements for amendments of unsolicited consumer
agreements
Subdivision D—Terminating unsolicited consumer agreements
82 Terminating an unsolicited consumer agreement during
the termination period
83 Effect of termination
84 Obligations of suppliers on termination
85 Obligations and rights of consumers on termination
86 Prohibition on supplies etc. for 10 business days
87 Repayment of payments received after termination
88 Prohibition on recovering amounts after termination
Subdivision E—Miscellaneous
89 Certain provisions of unsolicited consumer agreements
void
90 Waiver of rights
91 Application of this Division to persons to whom rights
of consumers and suppliers are assigned etc.
92 Application of this Division to supplies to third
parties
93 Effect of contravening this Division
94 Regulations may limit the application of this Division
95 Application of this Division to certain conduct
covered by the Corporations Act
Division 3—Lay‑by agreements
96 Lay‑by agreements must be in writing etc.
97 Termination of lay‑by agreements by consumers
98 Termination of lay‑by agreements by suppliers
99 Effect of termination
Division 4—Miscellaneous
100 Supplier must provide proof of transaction etc.
101 Consumer may request an itemised bill
102 Prescribed requirements for warranties against
defects
103 Repairers must comply with prescribed requirements
Part 3‑3—Safety of consumer goods and product
related services
Division 1—Safety standards
104 Making safety standards for consumer goods and
product related services
105 Declaring safety standards for consumer goods and
product related services
106 Supplying etc. consumer goods that do not comply with
safety standards
107 Supplying etc. product related services that do not
comply with safety standards
108 Requirement to nominate a safety standard
Division 2—Bans on consumer goods and product related
services
Subdivision A—Interim bans
109 Interim bans on consumer goods or product related
services that will or may cause injury to any person etc.
110 Places in which interim bans apply
111 Ban period for interim bans
112 Interaction of multiple interim bans
113 Revocation of interim bans
Subdivision B—Permanent bans
114 Permanent bans on consumer goods or product related
services
115 Places in which permanent bans apply
116 When permanent bans come into force
117 Revocation of permanent bans
Subdivision C—Compliance with interim bans and permanent
bans
118 Supplying etc. consumer goods covered by a ban
119 Supplying etc. product related services covered by a
ban
Subdivision D—Temporary exemption from mutual recognition
principles
120 Temporary exemption under the Trans‑Tasman
Mutual Recognition Act 1997
121 Temporary exemption under the Mutual Recognition Act
1992
Division 3—Recall of consumer goods
Subdivision A—Compulsory recall of consumer goods
122 Compulsory recall of consumer goods
123 Contents of a recall notice
124 Obligations of a supplier in relation to a recall
notice
125 Notification by persons who supply consumer goods
outside Australia if there is compulsory recall
126 Interaction of multiple recall notices
127 Compliance with recall notices
Subdivision B—Voluntary recall of consumer goods
128 Notification requirements for a voluntary recall of
consumer goods
Division 4—Safety warning notices
129 Safety warning notices about consumer goods and
product related services
130 Announcement of the results of an investigation etc.
Division 5—Consumer goods, or product related
services, associated with death or serious injury or illness
131 Suppliers to report consumer goods associated with
the death or serious injury or illness of any person
132 Suppliers to report product related services
associated with the death or serious injury or illness of any person
Division 6—Miscellaneous
133 Liability under a contract of insurance
Part 3‑4—Information standards
134 Making information standards for goods and services
135 Declaring information standards for goods and
services
136 Supplying etc. goods that do not comply with
information standards
137 Supplying etc. services that do not comply with
information standards
Part 3‑5—Liability of manufacturers for goods
with safety defects
Division 1—Actions against manufacturers for goods
with safety defects
138 Liability for loss or damage suffered by an injured
individual
139 Liability for loss or damage suffered by a person
other than an injured individual
140 Liability for loss or damage suffered by a person if
other goods are destroyed or damaged
141 Liability for loss or damage suffered by a person if
land, buildings or fixtures are destroyed or damaged
142 Defences to defective goods actions
Division 2—Defective goods actions
143 Time for commencing defective goods actions
144 Liability joint and several
145 Survival of actions
146 No defective goods action where workers’ compensation
law etc. applies
147 Unidentified manufacturer
148 Commonwealth liability for goods that are defective
only because of compliance with Commonwealth mandatory standard
149 Representative actions by the regulator
Division 3—Miscellaneous
150 Application of all or any provisions of this Part
etc. not to be excluded or modified
Chapter 4—Offences
Part 4‑1—Offences relating to unfair practices
Division 1—False or misleading representations etc.
151 False or misleading representations about goods or
services
152 False or misleading representations about sale etc.
of land
153 Misleading conduct relating to employment
154 Offering rebates, gifts, prizes etc.
155 Misleading conduct as to the nature etc. of goods
156 Misleading conduct as to the nature etc. of services
157 Bait advertising
158 Wrongly accepting payment
159 Misleading representations about certain business
activities
160 Application of provisions of this Division to
information providers
Division 2—Unsolicited supplies
161 Unsolicited cards etc.
162 Assertion of right to payment for unsolicited goods
or services
163 Assertion of right to payment for unauthorised
entries or advertisements
Division 3—Pyramid schemes
164 Participation in pyramid schemes
Division 4—Pricing
165 Multiple pricing
166 Single price to be specified in certain circumstances
Division 5—Other unfair practices
167 Referral selling
168 Harassment and coercion
Part 4‑2—Offences relating to consumer
transactions
Division 1—Consumer guarantees
169 Display notices
Division 2—Unsolicited consumer agreements
Subdivision A—Negotiating unsolicited consumer agreements
170 Permitted hours for negotiating an unsolicited
consumer agreement
171 Disclosing purpose and identity
172 Ceasing to negotiate on request
173 Informing person of termination period etc.
Subdivision B—Requirements for unsolicited consumer
agreements etc.
174 Requirement to give document to the consumer
175 Requirements for all unsolicited consumer agreements
etc.
176 Additional requirements for unsolicited consumer
agreements not negotiated by telephone
177 Requirements for amendments of unsolicited consumer
agreements
Subdivision C—Terminating unsolicited consumer agreements
178 Obligations of suppliers on termination
179 Prohibition on supplies for 10 business days
180 Repayment of payments received after termination
181 Prohibition on recovering amounts after termination
Subdivision D—Miscellaneous
182 Certain provisions of unsolicited consumer agreements
void
183 Waiver of rights
184 Application of this Division to persons to whom
rights of consumers and suppliers are assigned etc.
185 Application of this Division to supplies to third
parties
186 Regulations may limit the application of this
Division
187 Application of this Division to certain conduct
covered by the Corporations Act
Division 3—Lay‑by agreements
188 Lay‑by agreements must be in writing etc.
189 Termination charges
190 Termination of lay‑by agreements by suppliers
191 Refund of amounts
Division 4—Miscellaneous
192 Prescribed requirements for warranties against
defects
193 Repairers must comply with prescribed requirements
Part 4‑3—Offences relating to safety of
consumer goods and product related services
Division 1—Safety standards
194 Supplying etc. consumer goods that do not comply with
safety standards
195 Supplying etc. product related services that do not
comply with safety standards
196 Requirement to nominate a safety standard
Division 2—Bans on consumer goods and product related
services
197 Supplying etc. consumer goods covered by a ban
198 Supplying etc. product related services covered by a
ban
Division 3—Recall of consumer goods
199 Compliance with recall orders
200 Notification by persons who supply consumer goods
outside Australia if there is compulsory recall
201 Notification requirements for a voluntary recall of
consumer goods
Division 4—Consumer goods, or product related
services, associated with death or serious injury or illness
202 Suppliers to report consumer goods etc. associated
with the death or serious injury or illness of any person
Part 4‑4—Offences relating to information
standards
203 Supplying etc. goods that do not comply with
information standards
204 Supplying etc. services that do not comply with
information standards
Part 4‑5—Offences relating to substantiation
notices
205 Compliance with substantiation notices
206 False or misleading information etc.
Part 4‑6—Defences
207 Reasonable mistake of fact
208 Act or default of another person etc.
209 Publication of advertisements in the ordinary course
of business
210 Supplying goods acquired for the purpose of re‑supply
211 Supplying services acquired for the purpose of re‑supply
Part 4‑7—Miscellaneous
212 Prosecutions to be commenced within 3 years
213 Preference must be given to compensation for victims
214 Penalties for contraventions of the same nature etc.
215 Penalties for previous contraventions of the same
nature etc.
216 Granting of injunctions etc.
217 Criminal proceedings not to be brought for
contraventions of Chapter 2 or 3
Chapter 5—Enforcement and remedies
Part 5‑1—Enforcement
Division 1—Undertakings
218 Regulator may accept undertakings
Division 2—Substantiation notices
219 Regulator may require claims to be substantiated etc.
220 Extending periods for complying with substantiation
notices
221 Compliance with substantiation notices
222 False or misleading information etc.
Division 3—Public warning notices
223 Regulator may issue a public warning notice
Part 5‑2—Remedies
Division 1—Pecuniary penalties
224 Pecuniary penalties
225 Pecuniary penalties and offences
226 Defence
227 Preference must be given to compensation for victims
228 Civil action for recovery of pecuniary penalties
229 Indemnification of officers
230 Certain indemnities not authorised and certain
documents void
231 Application of section 229 to a person other
than a body corporate
Division 2—Injunctions
232 Injunctions
233 Consent injunctions
234 Interim injunctions
235 Variation and discharge of injunctions
Division 3—Damages
236 Actions for damages
Division 4—Compensation orders etc. for injured
persons and orders for non‑party consumers
Subdivision A—Compensation orders etc. for injured persons
237 Compensation orders etc. on application by an injured
person or the regulator
238 Compensation orders etc. arising out of other
proceedings
Subdivision B—Orders for non‑party consumers
239 Orders to redress etc. loss or damage suffered by non‑party
consumers
240 Determining whether to make a redress order etc. for
non‑party consumers
241 When a non‑party consumer is bound by a redress
order etc.
Subdivision C—Miscellaneous
242 Applications for orders
243 Kinds of orders that may be made
244 Power of a court to make orders
245 Interaction with other provisions
Division 5—Other remedies
246 Non‑punitive orders
247 Adverse publicity orders
248 Order disqualifying a person from managing
corporations
249 Privilege against exposure to penalty or
forfeiture—disqualification from managing corporations
250 Declarations relating to consumer contracts
Division 6—Defences
251 Publication of advertisement in the ordinary course
of business
252 Supplying consumer goods for the purpose of re‑supply
253 Supplying product related services for the purpose of
re‑supply
Part 5‑3—Country of origin representations
254 Overview
255 Country of origin representations do not contravene
certain provisions
256 Cost of producing or manufacturing goods
257 Rules for determining the percentage of costs of
production or manufacture attributable to a country
258 Proceedings relating to false, misleading or
deceptive conduct or representations
Part 5‑4—Remedies relating to guarantees
Division 1—Action against suppliers
Subdivision A—Action against suppliers of goods
259 Action against suppliers of goods
260 When a failure to comply with a guarantee is a major
failure
261 How suppliers may remedy a failure to comply with a
guarantee
262 When consumers are not entitled to reject goods
263 Consequences of rejecting goods
264 Replaced goods
265 Termination of contracts for the supply of services
that are connected with rejected goods
266 Rights of gift recipients
Subdivision B—Action against suppliers of services
267 Action against suppliers of services
268 When a failure to comply with a guarantee is a major
failure
269 Termination of contracts for the supply of services
270 Termination of contracts for the supply of goods that
are connected with terminated services
Division 2—Action for damages against manufacturers
of goods
271 Action for damages against manufacturers of goods
272 Damages that may be recovered by action against
manufacturers of goods
273 Time limit for actions against manufacturers of goods
Division 3—Miscellaneous
274 Indemnification of suppliers by manufacturers
275 Limitation of liability etc.
276 This Part not to be excluded etc. by contract
277 Representative actions by the regulator
Part 5‑5—Liability of suppliers and credit
providers
Division 1—Linked credit contracts
278 Liability of suppliers and linked credit providers
relating to linked credit contracts
279 Action by consumer to recover amount of loss or
damage
280 Cases where a linked credit provider is not liable
281 Amount of liability of linked credit providers
282 Counter‑claims and offsets
283 Enforcement of judgments etc.
284 Award of interest to consumers
285 Liability of suppliers to linked credit providers,
and of linked credit providers to suppliers
286 Joint liability proceedings and recovery under
section 135 of the National Credit Code
Division 2—Non‑linked credit contracts
287 Liability of suppliers and credit providers relating
to non‑linked credit contracts
Chapter 1—Introduction
1 Application of this Schedule
This Schedule applies to the extent
provided by:
(a) Part XI of the Competition
and Consumer Act; or
(b) an application law.
2
Definitions
(1) In this
Schedule:
ABN has the meaning given by section 41
of the A New Tax System (Australian Business Number) Act 1999.
acceptable quality: see sections 54(2)
to (7).
ACN has the meaning given by section 9
of the Corporations Act 2001.
acquire includes:
(a) in relation to goods—acquire by
way of purchase, exchange or taking on lease, on hire or on hire‑purchase;
and
(b) in relation to services—accept.
Note: Section 5 deals with when receipt of a
donation is an acquisition.
adverse publicity order: see section 247(2).
affected person, in relation to goods, means:
(a) a consumer who acquires the goods;
or
(b) a person who acquires the goods
from the consumer (other than for the purpose of re‑supply); or
(c) a person who derives title to the
goods through or under the consumer.
agreement document: see section 78(2).
applicable industry code has the meaning
given by section 51ACA(1) of the Competition and Consumer Act.
application law has the same meaning as in
section 140 of the Competition and Consumer Act.
article includes a token, card or document.
ASIC means the Australian Securities and Investments
Commission.
assert a right to payment: see section 10(1).
associate regulator:
(a) for the purposes of the
application of this Schedule as a law of the Commonwealth—means a body that is,
for the purposes of the application of this Schedule as a law of a State or a
Territory, the regulator within the meaning of the application law of the State
or Territory; or
(b) for the purposes of the
application of this Schedule as a law of a State or a Territory—means:
(i) the Commission; or
(ii) a body that is, for
the purposes of the application of this Schedule as a law of another State or a
Territory, the regulator within the meaning of the application law of that
other State or Territory.
authority, in relation to a State or a Territory
(including an external Territory), means:
(a) a body corporate established for a
purpose of the State or the Territory by or under a law of the State or
Territory; or
(b) an incorporated company in which
the State or the Territory, or a body corporate referred to in paragraph (a),
has a controlling interest.
authority of the Commonwealth means:
(a) a body corporate established for a
purpose of the Commonwealth by or under a law of the Commonwealth or a law of a
Territory; or
(b) an incorporated company in which
the Commonwealth, or a body corporate referred to in paragraph (a), has a
controlling interest.
banker has the same meaning as in section 4(1)
of the Competition and Consumer Act.
ban period for an interim ban: see section 111(1).
business includes a business not carried on
for profit.
business day, in relation to an unsolicited
consumer agreement, means a day that is not:
(a) a Saturday or Sunday; or
(b) a public holiday in the place
where the agreement was made.
business or professional relationship
includes a relationship between employer and employee, or a similar
relationship.
call on, in relation to negotiating an
unsolicited consumer agreement, does not include call by telephone.
Commission has the same meaning as in section 4(1)
of the Competition and Consumer Act.
Commonwealth mandatory standard, in relation
to goods, means a mandatory standard in respect of the goods imposed by a law
of the Commonwealth.
Commonwealth Minister means the Minister who
administers Part XI of the Competition and Consumer Act.
Competition and Consumer Act means the Competition
and Consumer Act 2010.
consumer: see section 3.
consumer contract: see section 23(3).
consumer goods means goods that are intended
to be used, or are of a kind likely to be used, for personal, domestic or
household use or consumption, and includes any such goods that have become
fixtures since the time they were supplied if:
(a) a recall notice for the goods has
been issued; or
(b) a person has voluntarily taken
action to recall the goods.
continuing credit contract: see section 14(1).
contravening conduct: see section 239(1)(a)(i).
court, in relation to a matter, means any
court having jurisdiction in the matter.
covering includes a stopper, glass, bottle,
vessel, box, capsule, case, frame or wrapper.
credit card: see section 39(5).
credit provider means a person providing, or
proposing to provide, in the course of a business carried on by the person,
credit to consumers in relation to the acquisition of goods or services.
dealer: see section 71.
debit card: see section 39(6).
declared term: see section 239(1)(a)(ii).
defective goods action means an action under
section 138, 139, 140 or 141, and includes such an action because of
section 138(3) or 145.
disclosed purpose: see section 55(2).
displayed price: see sections 47(2) to
(5).
document includes:
(a) a book, plan, paper, parchment or
other material on which there is writing or printing, or on which there are
marks, symbols or perforations having a meaning for persons qualified to
interpret them; and
(b) a disc, tape, paper or other
device from which sounds or messages are capable of being reproduced.
enforcement proceeding means:
(a) a proceeding for an offence
against Chapter 4; or
(b) a proceeding instituted under
Chapter 5 (other than under sections 237 and 239).
evidential burden, in relation to a matter,
means the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
express warranty, in relation to goods, means
an undertaking, assertion or representation:
(a) that relates to:
(i) the quality, state,
condition, performance or characteristics of the goods; or
(ii) the provision of
services that are or may at any time be required for the goods; or
(iii) the supply of parts that
are or may at any time be required for the goods; or
(iv) the future availability
of identical goods, or of goods constituting or forming part of a set of which
the goods, in relation to which the undertaking, assertion or representation is
given or made, form part; and
(b) that is given or made in
connection with the supply of the goods, or in connection with the promotion by
any means of the supply or use of the goods; and
(c) the natural tendency of which is
to induce persons to acquire the goods.
financial product has the meaning given by
section 12BAA of the Australian Securities and Investments Commission
Act 2001.
financial service has the meaning given by
section 12BAB of the Australian Securities and Investments Commission
Act 2001.
free item includes a free service.
goods includes:
(a) ships, aircraft and other
vehicles; and
(b) animals, including fish; and
(c) minerals, trees and crops, whether
on, under or attached to land or not; and
(d) gas and electricity; and
(e) computer software; and
(f) second‑hand goods; and
(g) any component part of, or
accessory to, goods.
grown: see section 255(7).
GST has the meaning given by section 195‑1
of the A New Tax System (Goods and Services Tax) Act 1999.
industry code has the meaning given by section 51ACA
of the Competition and Consumer Act.
information provider: see sections 19(5)
and (6).
information standard: see sections 134(1)
and 135(1).
inner container includes any container into
which goods are packed, other than a shipping or airline container, pallet or
other similar article.
interest, in relation to land, means:
(a) a legal or equitable estate or
interest in the land; or
(b) a right of occupancy of the land,
or of a building or part of a building erected on the land, arising by virtue
of the holding of shares, or by virtue of a contract to purchase shares, in an
incorporated company that owns the land or building; or
(c) a right, power or privilege over,
or in connection with, the land.
interim ban: see sections 109(1) and
(2).
involved: a person is involved, in a
contravention of a provision of this Schedule or in conduct that constitutes
such a contravention, if the person:
(a) has aided, abetted, counselled or
procured the contravention; or
(b) has induced, whether by threats or
promises or otherwise, the contravention; or
(c) has been in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to
effect the contravention.
joint liability proceedings means proceedings
relating to the joint and several liability under section 278 of a linked
credit provider and a supplier of goods or services.
label includes a band or ticket.
lay‑by agreement: see section 96(3).
linked credit contract: see section 278(2).
linked credit provider, in relation to a
supplier of goods or services, means a credit provider:
(a) with whom the supplier has a
contract, arrangement or understanding relating to:
(i) the supply to the
supplier of goods in which the supplier deals; or
(ii) the business carried
on by the supplier of supplying goods or services; or
(iii) the provision to
persons to whom goods or services are supplied by the supplier of credit in
respect of payment for those goods or services; or
(b) to whom the supplier, by arrangement
with the credit provider, regularly refers persons for the purpose of obtaining
credit; or
(c) whose forms of contract, forms of
application or offers for credit are, by arrangement with the credit provider,
made available to persons by the supplier; or
(d) with whom the supplier has a
contract, arrangement or understanding under which contracts, applications or
offers for credit from the credit provider may be signed by persons at premises
of the supplier.
listed public company has the meaning given
by section 995‑1(1) the Income Tax Assessment Act 1997.
loan contract means a contract under which a
person in the course of a business carried on by that person provides or agrees
to provide, whether on one or more occasions, credit to a consumer in one or
more of the following ways:
(a) by paying an amount to, or in
accordance with the instructions of, the consumer;
(b) by applying an amount in
satisfaction or reduction of an amount owed to the person by the consumer;
(c) by varying the terms of a contract
under which money owed to the person by the consumer is payable;
(d) by deferring an obligation of the
consumer to pay an amount to the person;
(e) by taking from the consumer a bill
of exchange or other negotiable instrument on which the consumer (whether alone
or with another person or other persons) is liable as drawer, acceptor or
endorser.
major failure: see sections 260 and 268.
mandatory standard, in relation to goods,
means a standard:
(a) for the goods or anything relating
to the goods; and
(b) that,
under a law of the Commonwealth, a State or a Territory, must be complied with
when the goods are supplied by their manufacturer, being a law creating an
offence or liability if there is such non‑compliance;
but does not include a standard which may be complied with
by meeting a higher standard.
manufacturer: see section 7.
market has the same meaning as in section 4E
of the Competition and Consumer Act.
materials, in relation to goods, means:
(a) if the goods are unmanufactured
raw products—those products; and
(b) if the goods are manufactured
goods—all matter or substances used or consumed in the manufacture of the goods
(other than matter or substances that are treated as overheads); and
(c) in either case—the inner
containers in which the goods are packed.
mixed supply: see section 3(11).
National Credit Code has the meaning given by
section 5(1) of the National Consumer Credit Protection Act 2009.
negotiated by telephone: see section 78(3).
negotiation: see section 72.
new participant: see section 45(2).
non‑linked credit contract: see section 287(5).
non‑party consumer means:
(a) in relation to conduct referred to
in section 239(1)(a)(i)—a person who is not, or has not been, a party to
an enforcement proceeding in relation to the conduct; and
(b) in relation to a term of a
consumer contract referred to in section 239(1)(a)(ii)—a person who is
not, or has not been, a party to an enforcement proceeding in relation to the
term.
participant, in a pyramid scheme, means a
person who participates in the scheme.
participate, in a pyramid scheme: see section 44(3).
participation payment: see section 45(1)(a).
permanent ban: see sections 114(1) and
(2).
premises means:
(a) an area of land or any other place
(whether or not it is enclosed or built on); or
(b) a building or other structure; or
(c) a vehicle, vessel or aircraft; or
(d) a part of any such premises.
price, of goods or services, means:
(a) the amount paid or payable
(including any charge of any description) for their acquisition; or
(b) if such an amount is not specified
because the acquisition is part only of a transaction for which a total amount
is paid or payable:
(i) the lowest amount
(including any charge of any description) for which the goods or services could
reasonably have been acquired from the supplier at the time of the transaction
or, if not from the supplier, from another supplier; or
(ii) if they could not
reasonably have been acquired separately from another supplier—their value at
the time of the transaction.
prior negotiations or arrangements, in
relation to the acquisition of goods by a consumer, means negotiations or
arrangements:
(a) that were conducted or made with
the consumer by another person in the course of a business carried on by the
other person; and
(b) that induced the consumer to
acquire the goods, or otherwise promoted the acquisition of the goods by the
consumer.
product related service means a service for
or relating to:
(a) the installation of consumer goods
of a particular kind; or
(b) the maintenance, repair or
cleaning of consumer goods of a particular kind; or
(c) the assembly of consumer goods of
a particular kind; or
(d) the delivery of consumer goods of
a particular kind;
and, without limiting paragraphs (a) to (d), includes
any other service that relates to the supply of consumer goods of that kind.
proof of transaction: see section 100(4).
publish, in relation to an advertisement,
means include in a publication intended for sale or public distribution
(whether to the public generally or to a restricted class or number of persons)
or for public display (including in an electronic form).
pyramid scheme: see section 45(1).
recall notice: see section 122(1).
recovery period: see section 41(4).
recruitment payment: see section 45(1)(b).
regulations means regulations made under
section 139G of the Competition and Consumer Act.
regulator:
(a) for the purposes of the
application of this Schedule as a law of the Commonwealth—means the Commission;
or
(b) for the purposes of the
application of this Schedule as a law of a State or a Territory—has the meaning
given by the application law of the State or Territory.
rejection period: see section 262(2).
related, in relation to a body corporate: see
section 6.
related contract or instrument: see section 83(2).
rely on, in relation to a term of a consumer
contract, includes the following:
(a) attempt to enforce the term;
(b) attempt to exercise a right
conferred, or purportedly conferred, by the term;
(c) assert the existence of a right
conferred, or purportedly conferred, by the term.
responsible Minister means:
(a) the Commonwealth Minister; or
(b) the Minister of a State who
administers the application law of the State; or
(c) the Minister of a Territory who
administers the application law of the Territory.
safety defect, in relation to goods: see
section 9.
safety standard: see sections 104(1) and
105(1).
sale by auction, in relation to the supply of
goods by a person, means a sale by auction that is conducted by an agent of the
person (whether the agent acts in person or by electronic means).
send includes deliver, and sent
and sender have corresponding meanings.
serious injury or illness means an acute
physical injury or illness that requires medical or surgical treatment by, or
under the supervision of, a medical practitioner or a nurse (whether or not in
a hospital, clinic or similar place), but does not include:
(a) an ailment, disorder, defect or
morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence, or aggravation, of
such an ailment, disorder, defect or morbid condition.
services includes:
(a) any rights (including rights in
relation to, and interests in, real or personal property), benefits, privileges
or facilities that are, or are to be, provided, granted or conferred in trade
or commerce; and
(b) without limiting paragraph (a),
the rights, benefits, privileges or facilities that are, or are to be,
provided, granted or conferred under:
(i) a contract for or in
relation to the performance of work (including work of a professional nature),
whether with or without the supply of goods; or
(ii) a contract for or in
relation to the provision of, or the use or enjoyment of facilities for,
amusement, entertainment, recreation or instruction; or
(iii) a contract for or in
relation to the conferring of rights, benefits or privileges for which
remuneration is payable in the form of a royalty, tribute, levy or similar
exaction; or
(iv) a contract of
insurance; or
(v) a contract between a
banker and a customer of the banker entered into in the course of the carrying
on by the banker of the business of banking; or
(vi) any contract for or in
relation to the lending of money;
but does not include rights or benefits being the supply
of goods or the performance of work under a contract of service.
share includes stock.
ship has the meaning given by section 3(1)
of the Admiralty Act 1988.
single price: see section 48(7).
substantially transformed, in relation to
goods: see section 255(3).
substantiation notice means a notice under
section 219.
substantiation notice compliance period: see
section 221(2).
supply, when
used as a verb, includes:
(a) in relation to goods—supply
(including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase;
and
(b) in
relation to services—provide, grant or confer;
and, when used as a noun, has a corresponding meaning, and
supplied and supplier have corresponding meanings.
Note: Section 5 deals with when a donation is a
supply.
supply of limited title: see section 51(2).
telecommunications service: see section 65(2).
termination charge: see section 97(2).
termination period, in relation to an
unsolicited consumer agreement, means the period within which the consumer
under the agreement is, under section 82 or under the agreement, entitled
to terminate the agreement.
tied continuing credit contract means a
continuing credit contract under which a credit provider provides credit in
respect of the payment by a consumer for goods or services supplied by a
supplier in relation to whom the credit provider is a linked credit provider.
tied loan contract means a loan contract
entered into between a credit provider and a consumer where:
(a) the credit provider knows, or
ought reasonably to know, that the consumer enters into the loan contract
wholly or partly for the purposes of payment for goods or services supplied by
a supplier; and
(b) at the time the loan contract is
entered into the credit provider is a linked credit provider of the supplier.
trade or commerce means:
(a) trade or commerce within
Australia; or
(b) trade or commerce between
Australia and places outside Australia;
and includes any business or professional activity
(whether or not carried on for profit).
transparent:
(a) in relation to a document—means:
(i) expressed in
reasonably plain language; and
(ii) legible; and
(iii) presented clearly; and
(b) in relation to a term of a
consumer contract—see section 24(3).
unfair, in relation to a term of a consumer
contract: see section 24(1).
unsolicited consumer agreement: see section 69.
unsolicited goods means goods sent to a
person without any request made by the person or on his or her behalf.
unsolicited services means services supplied
to a person without any request made by the person or on his or her behalf.
upfront price: see section 26(2).
warranty against defects: see section 102(3).
(2) In this
Schedule:
(a) a reference to engaging in conduct
is a reference to doing or refusing to do any act, including:
(i) the making of, or the
giving effect to a provision of, a contract or arrangement; or
(ii) the arriving at, or
the giving effect to a provision of, an understanding; or
(iii) the requiring of the
giving of, or the giving of, a covenant; and
(b) a reference to conduct, when that
expression is used as a noun otherwise than as mentioned in paragraph (a),
is a reference to the doing of or the refusing to do any act, including:
(i) the making of, or the
giving effect to a provision of, a contract or arrangement; or
(ii) the arriving at, or
the giving effect to a provision of, an understanding; or
(iii) the requiring of the
giving of, or the giving of, a covenant; and
(c) a reference to refusing to do an
act includes a reference to:
(i) refraining (otherwise
than inadvertently) from doing that act; or
(ii) making it known that
that act will not be done; and
(d) a reference to a person offering
to do an act, or to do an act on a particular condition, includes a reference
to the person making it known that the person will accept applications, offers
or proposals for the person to do that act or to do that act on that condition,
as the case may be.
3
Meaning of consumer
Acquiring goods as a consumer
(1) A person is taken to have acquired
particular goods as a consumer if, and only if:
(a) the amount paid or payable for the
goods, as worked out under subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is
prescribed for the purposes of this paragraph—that greater amount; or
(b) the goods were of a kind
ordinarily acquired for personal, domestic or household use or consumption; or
(c) the goods consisted of a vehicle
or trailer acquired for use principally in the transport of goods on public
roads.
(2) However, subsection (1) does not
apply if the person acquired the goods, or held himself or herself out as
acquiring the goods:
(a) for the purpose of re‑supply;
or
(b) for the purpose of using them up
or transforming them, in trade or commerce:
(i) in the course of a
process of production or manufacture; or
(ii) in the course of
repairing or treating other goods or fixtures on land.
Acquiring services as a consumer
(3) A person is taken to have acquired
particular services as a consumer if, and only if:
(a) the amount paid or payable for the
services, as worked out under subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is
prescribed for the purposes of subsection (1)(a)—that greater amount; or
(b) the services were of a kind
ordinarily acquired for personal, domestic or household use or consumption.
Amounts paid or payable for purchases
(4) For the purposes of subsection (1)
or (3), the amount paid or payable for goods or services purchased by a person
is taken to be the price paid or payable by the person for the goods or
services, unless subsection (5) applies.
(5) For the purposes of subsection (1)
or (3), if a person purchased goods or services by a mixed supply and a
specified price was not allocated to the goods or services in the contract
under which they were purchased, the amount paid or payable for goods or
services is taken to be:
(a) if, at the time of the
acquisition, the person could have purchased from the supplier the goods or
services other than by a mixed supply—the price at which they could have been
purchased from the supplier; or
(b) if:
(i) paragraph (a)
does not apply; but
(ii) at the time of the
acquisition, goods or services of the kind acquired could have been purchased
from another supplier other than by a mixed supply;
the lowest price at which the
person could, at that time, reasonably have purchased goods or services of that
kind from another supplier; or
(c) if, at the time of the
acquisition, goods or services of the kind acquired could not have been
purchased from any supplier except by a mixed supply—the value of the goods or
services at that time.
Amounts paid or payable for other acquisitions
(6) For the purposes of subsection (1)
or (3), the amount paid or payable for goods or services acquired by a person
other than by way of purchase is taken to be the price at which, at the time of
the acquisition, the person could have purchased the goods or services from the
supplier, unless subsection (7) or (8) applies.
(7) For the purposes of subsection (1)
or (3), if:
(a) goods or services acquired by a person
other than by way of purchase could not, at the time of the acquisition, have
been purchased from the supplier, or could have been purchased only by a mixed
supply; but
(b) at that time, goods or services of
the kind acquired could have been purchased from another supplier other than by
a mixed supply;
the amount paid or payable for the goods or services is
taken to be the lowest price at which the person could, at that time,
reasonably have purchased goods or services of that kind from another supplier.
(8) For the purposes of subsection (1)
or (3), if goods or services acquired by a person other than by way of purchase
could not, at the time of the acquisition, have been purchased from any
supplier other than by a mixed supply, the amount paid or payable for the goods
or services is taken to be the value of the goods or services at that time.
Amounts paid or payable for obtaining credit
(9) If:
(a) a person obtains credit in
connection with the acquisition of goods or services by him or her; and
(b) the amount paid or payable by him
or her for the goods or services is increased because he or she so obtains
credit;
obtaining the credit is taken for the purposes of
subsection (3) to be the acquisition of a service, and the amount paid or
payable by him or her for the service of being provided with the credit is
taken to include the amount of the increase.
Presumption that persons are consumers
(10) If it is alleged in any proceeding under
this Schedule, or in any other proceeding in respect of a matter arising under
this Schedule, that a person was a consumer in relation to particular goods or
services, it is presumed, unless the contrary is established, that the person
was a consumer in relation to those goods or services.
Mixed supplies
(11) A purchase or other acquisition of goods
or services is made by a mixed supply if the goods or services
are purchased or acquired together with other property or services, or together
with both other property and other services.
Supplies to consumers
(12) In this Schedule, a reference to a supply
of goods or services to a consumer is a reference to a supply of goods or
services to a person who is taken to have acquired them as a consumer.
4
Misleading representations with respect to future matters
(1) If:
(a) a person makes a representation
with respect to any future matter (including the doing of, or the refusing to
do, any act); and
(b) the person does not have
reasonable grounds for making the representation;
the representation is taken, for the purposes of this
Schedule, to be misleading.
(2) For the purposes of applying subsection (1)
in relation to a proceeding concerning a representation made with respect to a
future matter by:
(a) a party to the proceeding; or
(b) any other person;
the party or other person is taken not to have had
reasonable grounds for making the representation, unless evidence is adduced to
the contrary.
(3) To avoid doubt, subsection (2) does
not:
(a) have the effect that, merely
because such evidence to the contrary is adduced, the person who made the
representation is taken to have had reasonable grounds for making the
representation; or
(b) have the effect of placing on any
person an onus of proving that the person who made the representation had
reasonable grounds for making the representation.
(4) Subsection (1) does not limit by
implication the meaning of a reference in this Schedule to:
(a) a misleading representation; or
(b) a representation that is
misleading in a material particular; or
(c) conduct that is misleading or is
likely or liable to mislead;
and, in particular, does not imply that a representation
that a person makes with respect to any future matter is not misleading merely
because the person has reasonable grounds for making the representation.
5 When
donations are treated as supplies or acquisitions
(1) For the purposes of this Schedule, other
than Parts 3‑3, 3‑4, 4‑3 and 4‑4:
(a) a donation of goods or services is
not treated as a supply of the goods or services unless the donation is for
promotional purposes; and
(b) receipt of a donation of goods or
services is not treated as an acquisition of the goods or services unless the
donation is for promotional purposes.
(2) For the purposes of Parts 3‑3,
3‑4, 4‑3 and 4‑4:
(a) any donation of goods or services
is treated as a supply of the goods or services; and
(b) receipt of any donation of goods
or services is treated as an acquisition of the goods or services.
6
Related bodies corporate
(1) A body corporate is taken to be related
to another body corporate if the bodies corporate would, under section 4A(5)
of the Competition and Consumer Act, be deemed to be related to each other.
(2) In proceedings under this Schedule, it is
presumed, unless the contrary is established, that bodies corporate are not, or
were not at a particular time, related to each other.
7
Meaning of manufacturer
(1) A manufacturer includes the
following:
(a) a person who grows, extracts,
produces, processes or assembles goods;
(b) a person who holds himself or
herself out to the public as the manufacturer of goods;
(c) a person who causes or permits the
name of the person, a name by which the person carries on business or a brand
or mark of the person to be applied to goods supplied by the person;
(d) a
person (the first person) who causes or permits another person,
in connection with:
(i) the supply or possible
supply of goods by that other person; or
(ii) the promotion by that
other person by any means of the supply or use of goods;
to hold out the first person to
the public as the manufacturer of the goods;
(e) a person who imports goods into
Australia if:
(i) the person is not the
manufacturer of the goods; and
(ii) at the time of the
importation, the manufacturer of the goods does not have a place of business in
Australia.
(2) For the
purposes of subsection (1)(c):
(a) a name, brand or mark is taken to
be applied to goods if:
(i) it is woven in,
impressed on, worked into or annexed or affixed to the goods; or
(ii) it is applied to a
covering, label, reel or thing in or with which the goods are supplied; and
(b) if the name of a person, a name by
which a person carries on business or a brand or mark of a person is applied to
goods, it is presumed, unless the contrary is established, that the person
caused or permitted the name, brand or mark to be applied to the goods.
(3) If goods are imported into Australia on
behalf of a person, the person is taken, for the purposes of paragraph (1)(e),
to have imported the goods into Australia.
8
Goods affixed to land or premises
For the purposes of this Schedule, goods
are taken to be supplied to a consumer even if they are affixed to land or
premises at the time of the supply.
9
Meaning of safety defect in relation to goods
(1) For the purposes of this Schedule, goods
have a safety defect if their safety is not such as persons
generally are entitled to expect.
(2) In determining the extent of the safety
of goods, regard is to be given to all relevant circumstances, including:
(a) the manner in which, and the
purposes for which, they have been marketed; and
(b) their packaging; and
(c) the use of any mark in relation to
them; and
(d) any instructions for, or warnings
with respect to, doing, or refraining from doing, anything with or in relation
to them; and
(e) what might reasonably be expected
to be done with or in relation to them; and
(f) the time when they were supplied
by their manufacturer.
(3) An inference that goods have a safety
defect is not to be made only because of the fact that, after they were supplied
by their manufacturer, safer goods of the same kind were supplied.
(4) An inference that goods have a safety
defect is not to be made only because:
(a) there was compliance with a
Commonwealth mandatory standard for them; and
(b) that standard was not the safest
possible standard having regard to the latest state of scientific or technical
knowledge when they were supplied by their manufacturer.
10
Asserting a right to payment
(1) A person is taken to assert a right
to payment from another person if the person:
(a) makes a demand for the payment or
asserts a present or prospective right to the payment; or
(b) threatens to bring any legal
proceedings with a view to obtaining the payment; or
(c) places or causes to be placed the
name of the other person on a list of defaulters or debtors, or threatens to do
so, with a view to obtaining the payment; or
(d) invokes or causes to be invoked
any other collection procedure, or threatens to do so, with a view to obtaining
the payment; or
(e) sends any invoice or other
document that:
(i) states the amount of
the payment; or
(ii) sets out the price of
unsolicited goods or unsolicited services; or
(iii) sets out the charge
for placing, in a publication, an entry or advertisement;
and does not contain a statement,
to the effect that the document is not an assertion of a right to a payment,
that complies with any requirements prescribed by the regulations.
(2) For the purposes of this section, an
invoice or other document purporting to have been sent by or on behalf of a
person is taken to have been sent by that person unless the contrary is
established.
11
References to acquisition, supply and re‑supply
In this Schedule:
(a) a reference to the acquisition of
goods includes a reference to the acquisition of property in, or rights in
relation to, goods pursuant to a supply of the goods; and
(b) a reference to the supply or
acquisition of goods or services includes a reference to agreeing to supply or
acquire goods or services; and
(c) a reference to the supply or
acquisition of goods includes a reference to the supply or acquisition of goods
together with other property or services, or both; and
(d) a reference to the supply or
acquisition of services includes a reference to the supply or acquisition of
services together with property or other services, or both; and
(e) a reference to the re‑supply
of goods acquired from a person includes a reference to:
(i) a supply of the goods
to another person in an altered form or condition; and
(ii) a supply to another
person of goods in which the first‑mentioned goods have been
incorporated; and
(f) a reference to the re‑supply
of services (the original services) acquired from a person (the original
supplier) includes a reference to:
(i) a supply of the original
services to another person in an altered form or condition; and
(ii) a supply to another
person of other services that are substantially similar to the original
services, and could not have been supplied if the original services had not
been acquired by the person who acquired them from the original supplier.
12
Application of Schedule in relation to leases and licences of land and
buildings
In this Schedule:
(a) a reference to a contract includes
a reference to a lease of, or a licence in respect of, land or a building or
part of a building (despite the express references in this Schedule to such
leases or licences); and
(b) a reference to making or entering
into a contract, in relation to such a lease or licence, is a reference to
granting or taking the lease or licence; and
(c) a reference to a party to a
contract, in relation to such a lease or licence, includes a reference to any
person bound by, or entitled to the benefit of, any provision contained in the
lease or licence.
13
Loss or damage to include injury
In this Schedule:
(a) a reference to loss or damage,
other than a reference to the amount of any loss or damage, includes a
reference to injury; and
(b) a reference to the amount of any
loss or damage includes a reference to damages in respect of an injury.
14 Meaning
of continuing credit contract
(1) If:
(a) a person (the creditor),
in the course of a business carried on by the creditor, agrees with a consumer
to provide credit to the consumer in relation to:
(i) payment for goods or
services; or
(ii) cash supplied by the
creditor to the consumer from time to time; or
(iii) payment by the
creditor to another person in relation to goods or services, or cash, supplied
by that other person to the consumer from time to time; and
(b) the creditor:
(i) has an agreement,
arrangement or understanding (the credit agreement) with the
consumer in relation to the provision of the credit; or
(ii) is engaged in a course
of dealing (the credit dealing) with the consumer in relation to
the provision of the credit; and
(c) the
amounts owing to the creditor from time to time under the credit agreement or
credit dealing are, or are to be, calculated on the basis that:
(i) all amounts owing; and
(ii) all payments made;
by the consumer under, or in
respect of, the credit agreement or credit dealing are entered in one or more
accounts kept for the purpose of that agreement or dealing;
the credit agreement or credit dealing is taken, for the
purposes of this Schedule, to be a continuing credit contract.
(2) If subsection (1)(a)(iii) applies,
the creditor is taken, for the purposes of this section, to have provided
credit to the consumer in relation to any goods or services, or cash, supplied
by another person to the consumer to the extent of any payments made, or to be
made, by the creditor to that other person.
15
Contraventions of this Schedule
Conduct is not taken, for the purposes
of this Schedule, to contravene a provision of this Schedule merely because of
the application of:
(a) section 23(1); or
(b) a provision of Division 1 of
Part 3‑2 (other than section 66(2)); or
(c) a provision of Part 3‑5.
16
Severability
(1) If the making of a contract after the
commencement of this section contravenes this Schedule because the contract
includes a particular provision, nothing in this Schedule affects the validity
or enforceability of the contract otherwise than in relation to that provision,
so far as that provision is severable.
(2) This section has effect subject to any
order made under Division 4 of Part 5‑2.
17
References to provisions in this Schedule
In this Schedule, a reference to a
provision is a reference to a provision of this Schedule, unless the contrary
intention appears.
Chapter 2—General protections
Part 2‑1—Misleading or
deceptive conduct
18
Misleading or deceptive conduct
(1) A person must not, in trade or commerce,
engage in conduct that is misleading or deceptive or is likely to mislead or
deceive.
(2) Nothing in Part 3‑1 (which is
about unfair practices) limits by implication subsection (1).
Note: For rules relating to representations as to
the country of origin of goods, see Part 5‑3.
19
Application of this Part to information providers
(1) This Part does not apply to a publication
of matter by an information provider if:
(a) in any case—the information
provider made the publication in the course of carrying on a business of
providing information; or
(b) if the information provider is the
Australian Broadcasting Corporation, the Special Broadcasting Service Corporation
or the holder of a licence granted under the Broadcasting Services Act 1992—the
publication was by way of a radio or television broadcast by the information
provider.
(2) Subsection (1) does not apply to a
publication of an advertisement.
(3) Subsection (1) does not apply to a
publication of matter in connection with the supply or possible supply of, or
the promotion by any means of the supply or use of, goods or services (the publicised
goods or services), if:
(a) the publicised goods or services
were goods or services of a kind supplied by the information provider or, if
the information provider is a body corporate, by a body corporate that is
related to the information provider; or
(b) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a person who
supplies goods or services of the same kind as the publicised goods or
services; or
(c) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a body corporate
that is related to a body corporate that supplies goods or services of the same
kind as the publicised goods or services.
(4) Subsection (1) does not apply to a
publication of matter in connection with the sale or grant, or possible sale or
grant, of, or the promotion by any means of the sale or grant of, interests in
land (the publicised interests in land), if:
(a) the publicised interests in land
were interests of a kind sold or granted by the information provider or, if the
information provider is a body corporate, by a body corporate that is related
to the information provider; or
(b) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a person who
sells or grants interests of the same kind as the publicised interests in land;
or
(c) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a body
corporate that is related to a body corporate that sells or grants interests of
the same kind as the publicised interests in land.
(5) An information provider is
a person who carries on a business of providing information.
(6) Without limiting subsection (5),
each of the following is an information provider:
(a) the holder of a licence granted
under the Broadcasting Services Act 1992;
(b) a person who is the provider of a
broadcasting service under a class licence under that Act;
(c) the holder of a licence continued
in force by section 5(1) of the Broadcasting Services (Transitional
Provisions and Consequential Amendments) Act 1992;
(d) the Australian Broadcasting
Corporation;
(e) the Special Broadcasting Service
Corporation.
Part 2‑2—Unconscionable
conduct
20
Unconscionable conduct within the meaning of the unwritten law
(1) A person must not, in trade or commerce,
engage in conduct that is unconscionable, within the meaning of the unwritten
law from time to time.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) This section does not apply to conduct
that is prohibited by section 21 or 22.
21
Unconscionable conduct
(1) A person must not, in trade or commerce,
in connection with the supply or possible supply of goods or services to
another person, engage in conduct that is, in all the circumstances, unconscionable.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) Without in any way limiting the matters
to which the court may have regard for the purpose of determining whether a
person (the supplier) has contravened subsection (1) in
connection with the supply or possible supply of goods or services to another
person (the consumer), the court may have regard to:
(a) the relative strengths of the
bargaining positions of the supplier and the consumer; and
(b) whether, as a result of conduct
engaged in by the person, the consumer was required to comply with conditions
that were not reasonably necessary for the protection of the legitimate
interests of the supplier; and
(c) whether the consumer was able to
understand any documents relating to the supply or possible supply of the goods
or services; and
(d) whether any undue influence or
pressure was exerted on, or any unfair tactics were used against, the consumer
or a person acting on behalf of the consumer by the supplier or a person acting
on behalf of the supplier in relation to the supply or possible supply of the
goods or services; and
(e) the amount for which, and the
circumstances under which, the consumer could have acquired identical or
equivalent goods or services from a person other than the supplier.
(3) A person is not to be taken for the
purposes of this section to engage in unconscionable conduct in connection with
the supply or possible supply of goods or services to a person by reason only
that the person institutes legal proceedings in relation to that supply or
possible supply or refers a dispute or claim in relation to that supply or
possible supply to arbitration.
(4) For the purpose of determining whether a
person has contravened subsection (1) in connection with the supply or
possible supply of goods or services to another person:
(a) the court must not have regard to
any circumstances that were not reasonably foreseeable at the time of the
alleged contravention; and
(b) the court may have regard to
conduct engaged in, or circumstances existing, before the commencement of this
section.
(5) A reference in this section to goods or
services is a reference to goods or services of a kind ordinarily acquired for
personal, domestic or household use or consumption.
(6) A reference in this section to the supply
or possible supply of goods does not include a reference to the supply or
possible supply of goods for the purpose of re‑supply or for the purpose
of using them up or transforming them in trade or commerce.
(7) Section 4 applies for the purposes
of this section in the same way as it applies for the purposes of Division 1
of Part 3‑1.
22
Unconscionable conduct in business transactions
(1) A person must not, in trade or commerce,
in connection with:
(a) the supply or possible supply of
goods or services to another person (other than a listed public company); or
(b) the acquisition or possible
acquisition of goods or services from another person (other than a listed
public company);
engage in conduct that is, in all the circumstances,
unconscionable.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) Without in any way limiting the matters
to which the court may have regard for the purpose of determining whether a
person (the supplier) has contravened subsection (1) in
connection with the supply or possible supply of goods or services to another
person (the business consumer), the court may have regard to:
(a) the relative strengths of the
bargaining positions of the supplier and the business consumer; and
(b) whether, as a result of conduct
engaged in by the supplier, the business consumer was required to comply with
conditions that were not reasonably necessary for the protection of the
legitimate interests of the supplier; and
(c) whether the business consumer was
able to understand any documents relating to the supply or possible supply of
the goods or services; and
(d) whether any undue influence or
pressure was exerted on, or any unfair tactics were used against, the business
consumer or a person acting on behalf of the business consumer by the supplier
or a person acting on behalf of the supplier in relation to the supply or
possible supply of the goods or services; and
(e) the amount for which, and the
circumstances under which, the business consumer could have acquired identical
or equivalent goods or services from a person other than the supplier; and
(f) the extent to which the
supplier’s conduct towards the business consumer was consistent with the
supplier’s conduct in similar transactions between the supplier and other like
business consumers; and
(g) the requirements of any applicable
industry code; and
(h) the requirements of any other
industry code, if the business consumer acted on the reasonable belief that the
supplier would comply with that code; and
(i) the extent to which the supplier
unreasonably failed to disclose to the business consumer:
(i) any intended conduct
of the supplier that might affect the interests of the business consumer; and
(ii) any risks to the
business consumer arising from the supplier’s intended conduct (being risks
that the supplier should have foreseen would not be apparent to the business
consumer); and
(j) if there is a contract between
the supplier and the business consumer for the supply of the goods or services:
(i) the extent to which
the supplier was willing to negotiate the terms and conditions of the contract
with the business consumer; and
(ii) the terms and
conditions of the contract; and
(iii) the conduct of the
supplier and the business consumer in complying with the terms and conditions
of the contract; and
(iv) any conduct that the
supplier or the business consumer engaged in, in connection with their
commercial relationship, after they entered into the contract; and
(k) without limiting paragraph (j),
whether the supplier has a contractual right to vary unilaterally a term or
condition of a contract between the supplier and the business consumer for the
supply of the goods or services; and
(l) the extent to which the supplier
and the business consumer acted in good faith.
(3) Without in any way limiting the matters
to which the court may have regard for the purpose of determining whether a
person (the acquirer) has contravened subsection (1) in
connection with the acquisition or possible acquisition of goods or services
from another person (the small business supplier), the court may
have regard to:
(a) the relative strengths of the
bargaining positions of the acquirer and the small business supplier; and
(b) whether, as a result of conduct
engaged in by the acquirer, the small business supplier was required to comply
with conditions that were not reasonably necessary for the protection of the
legitimate interests of the acquirer; and
(c) whether the small business
supplier was able to understand any documents relating to the acquisition or
possible acquisition of the goods or services; and
(d) whether any undue influence or
pressure was exerted on, or any unfair tactics were used against, the small
business supplier or a person acting on behalf of the small business supplier
by the acquirer or a person acting on behalf of the acquirer in relation to the
acquisition or possible acquisition of the goods or services; and
(e) the amount for which, and the circumstances
in which, the small business supplier could have supplied identical or
equivalent goods or services to a person other than the acquirer; and
(f) the extent to which the
acquirer’s conduct towards the small business supplier was consistent with the
acquirer’s conduct in similar transactions between the acquirer and other like
small business suppliers; and
(g) the requirements of any applicable
industry code; and
(h) the requirements of any other
industry code, if the small business supplier acted on the reasonable belief
that the acquirer would comply with that code; and
(i) the extent to which the acquirer
unreasonably failed to disclose to the small business supplier:
(i) any intended conduct
of the acquirer that might affect the interests of the small business supplier;
and
(ii) any risks to the small
business supplier arising from the acquirer’s intended conduct (being risks
that the acquirer should have foreseen would not be apparent to the small
business supplier); and
(j) if there is a contract between
the acquirer and the small business supplier for the acquisition of the goods
or services:
(i) the extent to which
the acquirer was willing to negotiate the terms and conditions of the contract
with the small business supplier; and
(ii) the terms and
conditions of the contract; and
(iii) the conduct of the
acquirer and the small business supplier in complying with the terms and
conditions of the contract; and
(iv) any conduct that the
acquirer or the small business supplier engaged in, in connection with their
commercial relationship, after they entered into the contract; and
(k) without limiting paragraph (j),
whether the acquirer has a contractual right to vary unilaterally a term or
condition of a contract between the acquirer and the small business supplier
for the acquisition of the goods or services; and
(l) the extent to which the acquirer
and the small business supplier acted in good faith.
(4) A person
is not to be taken for the purposes of this section to engage in unconscionable
conduct in connection with:
(a) the supply or possible supply of
goods or services to another person; or
(b) the acquisition or possible
acquisition of goods or services from another person;
by reason only that the first‑mentioned person
institutes legal proceedings in relation to that supply, possible supply,
acquisition or possible acquisition or refers to arbitration a dispute or claim
in relation to that supply, possible supply, acquisition or possible
acquisition.
(5) For the purpose of determining whether a
person has contravened subsection (1):
(a) the court must not have regard to
any circumstances that were not reasonably foreseeable at the time of the
alleged contravention; and
(b) the court may have regard to
circumstances existing before the commencement of this section but not to
conduct engaged in before that commencement.
(6) A reference in this section to the supply
or possible supply of goods or services is a reference to the supply or
possible supply of goods or services to a person whose acquisition or possible
acquisition of the goods or services is or would be for the purpose of trade or
commerce.
(7) A reference in this section to the
acquisition or possible acquisition of goods or services is a reference to the
acquisition or possible acquisition of goods or services by a person whose
acquisition or possible acquisition of the goods or services is or would be for
the purpose of trade or commerce.
(8) Section 4 applies for the purposes
of this section in the same way as it applies for the purposes of Division 1
of Part 3‑1.
Part 2‑3—Unfair contract
terms
23
Unfair terms of consumer contracts
(1) A term of a consumer contract is void if:
(a) the term is unfair; and
(b) the contract is a standard form
contract.
(2) The contract continues to bind the
parties if it is capable of operating without the unfair term.
(3) A consumer contract is a
contract for:
(a) a supply of goods or services; or
(b) a sale or grant of an interest in
land;
to an individual whose acquisition of the goods, services
or interest is wholly or predominantly for personal, domestic or household use
or consumption.
24
Meaning of unfair
(1) A term of a consumer contract is unfair
if:
(a) it would cause a significant
imbalance in the parties’ rights and obligations arising under the contract;
and
(b) it is not reasonably necessary in
order to protect the legitimate interests of the party who would be advantaged
by the term; and
(c) it would cause detriment (whether
financial or otherwise) to a party if it were to be applied or relied on.
(2) In determining whether a term of a
consumer contract is unfair under subsection (1), a court may take into
account such matters as it thinks relevant, but must take into account the
following:
(a) the extent to which the term is
transparent;
(b) the contract as a whole.
(3) A term is transparent if
the term is:
(a) expressed in reasonably plain
language; and
(b) legible; and
(c) presented clearly; and
(d) readily available to any party
affected by the term.
(4) For the purposes of subsection (1)(b),
a term of a consumer contract is presumed not to be reasonably necessary in
order to protect the legitimate interests of the party who would be advantaged
by the term, unless that party proves otherwise.
25
Examples of unfair terms
(1) Without
limiting section 24, the following are examples of the kinds of terms of a
consumer contract that may be unfair:
(a) a term that permits, or has the
effect of permitting, one party (but not another party) to avoid or limit
performance of the contract;
(b) a term that permits, or has the
effect of permitting, one party (but not another party) to terminate the
contract;
(c) a term that penalises, or has the
effect of penalising, one party (but not another party) for a breach or
termination of the contract;
(d) a term that permits, or has the
effect of permitting, one party (but not another party) to vary the terms of
the contract;
(e) a term that permits, or has the
effect of permitting, one party (but not another party) to renew or not renew
the contract;
(f) a term that permits, or has the
effect of permitting, one party to vary the upfront price payable under the
contract without the right of another party to terminate the contract;
(g) a term that permits, or has the
effect of permitting, one party unilaterally to vary the characteristics of the
goods or services to be supplied, or the interest in land to be sold or
granted, under the contract;
(h) a term that permits, or has the
effect of permitting, one party unilaterally to determine whether the contract
has been breached or to interpret its meaning;
(i) a term that limits, or has the
effect of limiting, one party’s vicarious liability for its agents;
(j) a term that permits, or has the
effect of permitting, one party to assign the contract to the detriment of
another party without that other party’s consent;
(k) a term that limits, or has the
effect of limiting, one party’s right to sue another party;
(l) a term that limits, or has the
effect of limiting, the evidence one party can adduce in proceedings relating
to the contract;
(m) a term that imposes, or has the
effect of imposing, the evidential burden on one party in proceedings relating
to the contract;
(n) a term of a kind, or a term that
has an effect of a kind, prescribed by the regulations.
(2) Before the Governor‑General makes a
regulation for the purposes of subsection (1)(n) prescribing a kind of
term, or a kind of effect that a term has, the Minister must take into
consideration:
(a) the detriment that a term of that
kind would cause to consumers; and
(b) the impact on business generally
of prescribing that kind of term or effect; and
(c) the public interest.
26
Terms that define main subject matter of consumer contracts etc. are unaffected
(1) Section 23 does not apply to a term
of a consumer contract to the extent, but only to the extent, that the term:
(a) defines the main subject matter of
the contract; or
(b) sets the upfront price payable
under the contract; or
(c) is a term required, or expressly
permitted, by a law of the Commonwealth, a State or a Territory.
(2) The upfront price payable
under a consumer contract is the consideration that:
(a) is provided, or is to be provided,
for the supply, sale or grant under the contract; and
(b) is disclosed at or before the time
the contract is entered into;
but does not include any other consideration that is
contingent on the occurrence or non‑occurrence of a particular event.
27
Standard form contracts
(1) If a party to a proceeding alleges that a
contract is a standard form contract, it is presumed to be a standard form
contract unless another party to the proceeding proves otherwise.
(2) In determining whether a contract is a
standard form contract, a court may take into account such matters as it thinks
relevant, but must take into account the following:
(a) whether one of the parties has all
or most of the bargaining power relating to the transaction;
(b) whether the contract was prepared
by one party before any discussion relating to the transaction occurred between
the parties;
(c) whether another party was, in
effect, required either to accept or reject the terms of the contract (other
than the terms referred to in section 26(1)) in the form in which they
were presented;
(d) whether another party was given an
effective opportunity to negotiate the terms of the contract that were not the
terms referred to in section 26(1);
(e) whether the terms of the contract
(other than the terms referred to in section 26(1)) take into account the
specific characteristics of another party or the particular transaction;
(f) any other matter prescribed by
the regulations.
28
Contracts to which this Part does not apply
(1) This Part does not apply to:
(a) a contract of marine salvage or towage;
or
(b) a charterparty of a ship; or
(c) a contract for the carriage of
goods by ship.
(2) Without limiting subsection (1)(c),
the reference in that subsection to a contract for the carriage of goods by
ship includes a reference to any contract covered by a sea carriage document
within the meaning of the amended Hague Rules referred to in section 7(1)
of the Carriage of Goods by Sea Act 1991.
(3) This Part does not apply to a contract
that is the constitution (within the meaning of section 9 of the Corporations
Act 2001) of a company, managed investment scheme or other kind of body.
Chapter 3—Specific protections
Part 3‑1—Unfair practices
Division 1—False or misleading
representations etc.
29
False or misleading representations about goods or services
(1) A person must not, in trade or commerce,
in connection with the supply or possible supply of goods or services or in
connection with the promotion by any means of the supply or use of goods or
services:
(a) make a false or misleading
representation that goods are of a particular standard, quality, value, grade,
composition, style or model or have had a particular history or particular
previous use; or
(b) make a false or misleading
representation that services are of a particular standard, quality, value or
grade; or
(c) make a false or misleading
representation that goods are new; or
(d) make a false or misleading
representation that a particular person has agreed to acquire goods or
services; or
(e) make a false or misleading
representation that purports to be a testimonial by any person relating to
goods or services; or
(f) make a false or misleading
representation concerning:
(i) a testimonial by any
person; or
(ii) a representation that
purports to be such a testimonial;
relating to goods or services;
or
(g) make a false or misleading
representation that goods or services have sponsorship, approval, performance
characteristics, accessories, uses or benefits; or
(h) make a false or misleading
representation that the person making the representation has a sponsorship,
approval or affiliation; or
(i) make a false or misleading
representation with respect to the price of goods or services; or
(j) make a false or misleading
representation concerning the availability of facilities for the repair of
goods or of spare parts for goods; or
(k) make a false or misleading
representation concerning the place of origin of goods; or
(l) make a false or misleading
representation concerning the need for any goods or services; or
(m) make
a false or misleading representation concerning the existence, exclusion or
effect of any condition, warranty, guarantee, right or remedy (including a
guarantee under Division 1 of Part 3‑2); or
(n) make
a false or misleading representation concerning a requirement to pay for a
contractual right that:
(i) is wholly or partly
equivalent to any condition, warranty, guarantee, right or remedy (including a
guarantee under Division 1 of Part 3‑2); and
(ii) a person has under a
law of the Commonwealth, a State or a Territory (other than an unwritten law).
Note 1: A pecuniary penalty may be imposed for a
contravention of this subsection.
Note 2: For rules relating to representations as to the
country of origin of goods, see Part 5‑3.
(2) For the purposes of applying subsection (1)
in relation to a proceeding concerning a representation of a kind referred to
in subsection (1)(e) or (f), the representation is taken to be misleading
unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does
not:
(a) have the effect that, merely
because such evidence to the contrary is adduced, the representation is not
misleading; or
(b) have the effect of placing on any
person an onus of proving that the representation is not misleading.
30
False or misleading representations about sale etc. of land
(1) A person must not, in trade or commerce,
in connection with the sale or grant, or the possible sale or grant, of an
interest in land or in connection with the promotion by any means of the sale
or grant of an interest in land:
(a) make a false or misleading
representation that the person making the representation has a sponsorship,
approval or affiliation; or
(b) make a false or misleading
representation concerning the nature of the interest in the land; or
(c) make a false or misleading
representation concerning the price payable for the land; or
(d) make a false or misleading
representation concerning the location of the land; or
(e) make a false or misleading
representation concerning the characteristics of the land; or
(f) make a false or misleading
representation concerning the use to which the land is capable of being put or
may lawfully be put; or
(g) make a false or misleading
representation concerning the existence or availability of facilities associated
with the land.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) This section does not affect the
application of any other provision of Part 2‑1 or this Part in
relation to the supply or acquisition, or the possible supply or acquisition,
of interests in land.
31
Misleading conduct relating to employment
A person must not, in relation to
employment that is to be, or may be, offered by the person or by another
person, engage in conduct that is liable to mislead persons seeking the
employment as to:
(a) the availability, nature, terms or
conditions of the employment; or
(b) any other matter relating to the
employment.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
32
Offering rebates, gifts, prizes etc.
(1) A person must not, in trade or commerce,
offer any rebate, gift, prize or other free item with the intention of not
providing it, or of not providing it as offered, in connection with:
(a) the supply or possible supply of
goods or services; or
(b) the promotion by any means of the
supply or use of goods or services; or
(c) the sale or grant, or the possible
sale or grant, of an interest in land; or
(d) the promotion by any means of the
sale or grant of an interest in land.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) If a person offers any rebate, gift,
prize or other free item in connection with:
(a) the supply or possible supply of
goods or services; or
(b) the promotion by any means of the
supply or use of goods or services; or
(c) the sale or grant, or the possible
sale or grant, of an interest in land; or
(d) the promotion by any means of the
sale or grant of an interest in land;
the person must, within the time specified in the offer or
(if no such time is specified) within a reasonable time after making the offer,
provide the rebate, gift, prize or other free item in accordance with the
offer.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) Subsection (2) does not apply if:
(a) the person’s failure to provide
the rebate, gift, prize or other free item in accordance with the offer was due
to the act or omission of another person, or to some other cause beyond the
person’s control; and
(b) the person took reasonable
precautions and exercised due diligence to avoid the failure.
(4) Subsection (2) does not apply to an
offer that the person makes to another person if:
(a) the person offers to the other
person a different rebate, gift, prize or other free item as a replacement; and
(b) the other person agrees to receive
the different rebate, gift, prize or other free item.
(5) This section does not affect the
application of any other provision of Part 2‑1 or this Part in
relation to the supply or acquisition, or the possible supply or acquisition,
of interests in land.
33
Misleading conduct as to the nature etc. of goods
A person must not, in trade or commerce,
engage in conduct that is liable to mislead the public as to the nature, the manufacturing
process, the characteristics, the suitability for their purpose or the quantity
of any goods.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
34 Misleading
conduct as to the nature etc. of services
A person must not, in trade or commerce,
engage in conduct that is liable to mislead the public as to the nature, the
characteristics, the suitability for their purpose or the quantity of any
services.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
35
Bait advertising
(1) A person must not, in trade or commerce,
advertise goods or services for supply at a specified price if:
(a) there are reasonable grounds for
believing that the person will not be able to offer for supply those goods or
services at that price for a period that is, and in quantities that are,
reasonable, having regard to:
(i) the nature of the
market in which the person carries on business; and
(ii) the nature of the
advertisement; and
(b) the person is aware or ought
reasonably to be aware of those grounds.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person who, in trade or commerce,
advertises goods or services for supply at a specified price must offer such
goods or services for supply at that price for a period that is, and in
quantities that are, reasonable having regard to:
(a) the nature of the market in which
the person carries on business; and
(b) the nature of the advertisement.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
36
Wrongly accepting payment
(1) A person must not, in trade or commerce,
accept payment or other consideration for goods or services if, at the time of
the acceptance, the person intends not to supply the goods or services.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person must not, in trade or commerce,
accept payment or other consideration for goods or services if, at the time of
the acceptance, the person intends to supply goods or services materially
different from the goods or services in respect of which the payment or other
consideration is accepted.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) A person must not, in trade or commerce,
accept payment or other consideration for goods or services if, at the time of
the acceptance:
(a) there are reasonable grounds for
believing that the person will not be able to supply the goods or services:
(i) within the period
specified by or on behalf of the person at or before the time the payment or
other consideration was accepted; or
(ii) if no period is
specified at or before that time—within a reasonable time; and
(b) the person is aware or ought
reasonably to be aware of those grounds.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(4) A person who, in trade or commerce,
accepts payment or other consideration for goods or services must supply all
the goods or services:
(a) within the period specified by or
on behalf of the person at or before the time the payment or other
consideration was accepted; or
(b) if no period is specified at or
before that time—within a reasonable time.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(5) Subsection (4) does not apply if:
(a) the person’s failure to supply all
the goods or services within the period, or within a reasonable time, was due
to the act or omission of another person, or to some other cause beyond the
person’s control; and
(b) the person took reasonable
precautions and exercised due diligence to avoid the failure.
(6) Subsection (4) does not apply if:
(a) the person offers to supply
different goods or services as a replacement to the person (the customer)
to whom the original supply was to be made; and
(b) the customer agrees to receive the
different goods or services.
(7) Subsections (1), (2), (3) and (4)
apply whether or not the payment or other consideration that the person
accepted represents the whole or a part of the payment or other consideration
for the supply of the goods or services.
37
Misleading representations about certain business activities
(1) A person must not, in trade or commerce,
make a representation that:
(a) is false or misleading in a
material particular; and
(b) concerns the profitability, risk
or any other material aspect of any business activity that the person has
represented as one that can be, or can be to a considerable extent, carried on
at or from a person’s place of residence.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person must not, in trade or commerce,
make a representation that:
(a) is false or misleading in a
material particular; and
(b) concerns the profitability, risk
or any other material aspect of any business activity:
(i) that the person
invites (whether by advertisement or otherwise) other persons to engage or
participate in, or to offer or apply to engage or participate in; and
(ii) that requires the
performance of work by other persons, or the investment of money by other
persons and the performance by them of work associated with the investment.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
38
Application of provisions of this Division to information providers
(1) Sections 29, 30, 33, 34 and 37 do
not apply to a publication of matter by an information provider if:
(a) in any case—the information
provider made the publication in the course of carrying on a business of providing
information; or
(b) if the information provider is the
Australian Broadcasting Corporation, the Special Broadcasting Service
Corporation or the holder of a licence granted under the Broadcasting
Services Act 1992—the publication was by way of a radio or television
broadcast by the information provider.
(2) Subsection (1) does not apply to a
publication of an advertisement.
(3) Subsection (1) does not apply to a
publication of matter in connection with the supply or possible supply of, or
the promotion by any means of the supply or use of, goods or services (the publicised
goods or services), if:
(a) the publicised goods or services
were goods or services of a kind supplied by the information provider or, if
the information provider is a body corporate, by a body corporate that is
related to the information provider; or
(b) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a person who
supplies goods or services of the same kind as the publicised goods or
services; or
(c) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a body
corporate that is related to a body corporate that supplies goods or services
of the same kind as the publicised goods or services.
(4) Subsection (1) does not apply to a
publication of matter in connection with the sale or grant, or possible sale or
grant, of, or the promotion by any means of the sale or grant of, interests in
land (the publicised interests in land), if:
(a) the publicised interests in land
were interests of a kind sold or granted by the information provider or, if the
information provider is a body corporate, by a body corporate that is related
to the information provider; or
(b) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a person who
sells or grants interests of the same kind as the publicised interests in land;
or
(c) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a body
corporate that is related to a body corporate that sells or grants interests of
the same kind as the publicised interests in land.
Division 2—Unsolicited supplies
39
Unsolicited cards etc.
(1) A person must not send a credit card or a
debit card, or an article that may be used as a credit card and a debit card,
to another person except:
(a) pursuant to a written request by
the person who will be under a liability to the person who issued the card or
article in respect of the use of the card or article; or
(b) in renewal or replacement of, or
in substitution for:
(i) a card or article of
the same kind previously sent to the other person pursuant to a written request
by the person who was under a liability, to the person who issued the card
previously so sent, in respect of the use of that card; or
(ii) a card or article of
the same kind previously sent to the other person and used for a purpose for
which it was intended to be used.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) Subsection (1) does not apply unless
the card or article is sent by or on behalf of the person who issued it.
(3) A person must not take any action that
enables another person who has a credit card to use the card as a debit card,
except in accordance with the other person’s written request.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(4) A person must not take any action that
enables another person who has a debit card to use the card as a credit card,
except in accordance with the other person’s written request.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(5) A credit card is an article
that is one or more of the following:
(a) an article of a kind commonly
known as a credit card;
(b) a similar article intended for use
in obtaining cash, goods or services on credit;
(c) an article of a kind that persons
carrying on business commonly issue to their customers, or prospective
customers, for use in obtaining goods or services from those persons on credit;
and includes an article that may be used as an article
referred to in paragraph (a), (b) or (c).
(6) A debit card is:
(a) an article intended for use by a
person in obtaining access to an account that is held by the person for the
purpose of withdrawing or depositing cash or obtaining goods or services; or
(b) an article that may be used as an
article referred to in paragraph (a).
40
Assertion of right to payment for unsolicited goods or services
(1) A person must not, in trade or commerce,
assert a right to payment from another person for unsolicited goods unless the
person has reasonable cause to believe that there is a right to the payment.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person must not, in trade or commerce,
assert a right to payment from another person for unsolicited services unless
the person has reasonable cause to believe that there is a right to the
payment.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) A person must not, in trade or commerce,
send to another person an invoice or other document that:
(a) states the amount of a payment, or
sets out the charge, for supplying unsolicited goods or unsolicited services;
and
(b) does not contain a warning
statement that complies with the requirements set out in the regulations;
unless the person has reasonable cause to believe that
there is a right to the payment or charge.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(4) In a proceeding against a person in
relation to a contravention of this section, the person bears the onus of
proving that the person had reasonable cause to believe that there was a right
to the payment or charge.
41
Liability etc. of recipient for unsolicited goods
(1) If a person, in trade or commerce,
supplies unsolicited goods to another person, the other person:
(a) is not liable to make any payment
for the goods; and
(b) is not liable for loss of or
damage to the goods, other than loss or damage resulting from the other person
doing a wilful and unlawful act in relation to the goods during the recovery
period.
(2) If a person sends, in trade or commerce,
unsolicited goods to another person:
(a) neither the sender nor any person
claiming under the sender is entitled, after the end of the recovery period, to
take action for the recovery of the goods from the other person; and
(b) at the end of the recovery period,
the goods become, by force of this section, the property of the other person
freed and discharged from all liens and charges of any description.
(3) However, subsection (2)
does not apply to or in relation to unsolicited goods sent to a person if:
(a) the person has, at any time during
the recovery period, unreasonably refused to permit the sender or the owner of
the goods to take possession of the goods; or
(b) the sender or the owner of the
goods has within the recovery period taken possession of the goods; or
(c) the goods were received by the
person in circumstances in which the person knew, or might reasonably be
expected to have known, that the goods were not intended for him or her.
(4) The recovery period is
whichever of the following periods ends first:
(a) the period of 3 months starting on
the day after the day on which the person received the goods;
(b) if the person who receives the
unsolicited goods gives notice with respect to the goods to the supplier or
sender in accordance with subsection (5)—the period of one month starting
on the day after the day on which the notice is given.
(5) A notice under subsection (4)(b):
(a) must be in writing; and
(b) must state the name and address of
the person who received the goods; and
(c) must state the address at which
possession may be taken of the goods, if it is not the address of the person;
and
(d) must contain a statement to the
effect that the goods are unsolicited goods.
42
Liability of recipient for unsolicited services
If a person, in trade or commerce,
supplies unsolicited services to another person, the other person:
(a) is not liable to make any payment
for the services; and
(b) is not liable for loss or damage
as a result of the supply of the services.
43
Assertion of right to payment for unauthorised entries or advertisements
(1) A person must not assert a right to
payment from another person of a charge for placing, in a publication, an entry
or advertisement relating to:
(a) the other person; or
(b) the other person’s profession, business,
trade or occupation;
unless the person knows, or has reasonable cause to
believe, that the other person authorised the placing of the entry or
advertisement.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person must not send to another person
an invoice or other document that:
(a) states the amount of a payment, or
sets out the charge, for placing, in a publication, an entry or advertisement
relating to:
(i) the other person; or
(ii) the other person’s profession,
business, trade or occupation; and
(b) does not contain a warning
statement that complies with the requirements set out in the regulations;
unless the person knows, or has reasonable cause to
believe, that the other person authorised the placing of the entry or
advertisement.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) Subsections (1) and (2) do not apply
to an entry or advertisement that is placed in a publication published by a
person who is:
(a) the publisher of a publication
that has an audited circulation of 10,000 copies or more per week, as confirmed
by the most recent audit of the publication by a body specified in the
regulations; or
(b) a body corporate related to such a
publisher; or
(c) the Commonwealth, a State or a
Territory, or an authority of the Commonwealth, a State or a Territory; or
(d) a person specified in the
regulations.
(4) A person:
(a) is not liable to make any payment
to another person; and
(b) is entitled to recover by action
in a court against another person any payment made by the person to the other
person;
in full or part satisfaction of a charge for placing, in a
publication, an entry or advertisement, unless the person authorised the
placing of the entry or advertisement.
(5) A person is not taken for the purposes of
this section to have authorised the placing of the entry or advertisement,
unless:
(a) a document authorising the placing
of the entry or advertisement has been signed by the person or by another
person authorised by him or her; and
(b) a copy of the document has been
given to the person before the right to payment of a charge for the placing of
the entry or advertisement is asserted; and
(c) the document specifies:
(i) the name and address
of the person publishing the entry or advertisement; and
(ii) particulars of the
entry or advertisement; and
(iii) the amount of the
charge for the placing of the entry or advertisement, or the basis on which the
charge is, or is to be, calculated.
(6) In a proceeding against a person in
relation to a contravention of this section, the person bears the onus of
proving that the person knew or had reasonable cause to believe that the person
against whom a right to payment was asserted had authorised the placing of the
entry or advertisement.
Division 3—Pyramid schemes
44
Participation in pyramid schemes
(1) A person must not participate in a
pyramid scheme.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person must not induce, or attempt to
induce, another person to participate in a pyramid scheme.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) To participate in a pyramid
scheme is:
(a) to establish or promote the scheme
(whether alone or together with another person); or
(b) to take part in the scheme in any
capacity (whether or not as an employee or agent of a person who establishes or
promotes the scheme, or who otherwise takes part in the scheme).
45
Meaning of pyramid scheme
(1) A pyramid scheme is a
scheme with both of the following characteristics:
(a) to take part in the scheme, some
or all new participants must provide, to another participant or participants in
the scheme, either of the following (a participation payment):
(i) a financial or non‑financial
benefit to, or for the benefit of, the other participant or participants;
(ii) a financial or non‑financial
benefit partly to, or for the benefit of, the other participant or participants
and partly to, or for the benefit of, other persons;
(b) the participation payments are
entirely or substantially induced by the prospect held out to new participants
that they will be entitled, in relation to the introduction to the scheme of
further new participants, to be provided with either of the following (a
recruitment payment):
(i) a financial or non‑financial
benefit to, or for the benefit of, new participants;
(ii) a financial or non‑financial
benefit partly to, or for the benefit of, new participants and partly to, or
for the benefit of, other persons.
(2) A new participant includes
a person who has applied, or been invited, to participate in the scheme.
(3) A scheme may be a pyramid scheme:
(a) no matter who holds out to new
participants the prospect of entitlement to recruitment payments; and
(b) no matter who is to make
recruitment payments to new participants; and
(c) no matter who is to make
introductions to the scheme of further new participants.
(4) A scheme may be a pyramid scheme even if
it has any or all of the following characteristics:
(a) the participation payments may (or
must) be made after the new participants begin to take part in the scheme;
(b) making a participation payment is
not the only requirement for taking part in the scheme;
(c) the holding out of the prospect of
entitlement to recruitment payments does not give any new participant a legally
enforceable right;
(d) arrangements for the scheme are
not recorded in writing (whether entirely or partly);
(e) the scheme involves the marketing
of goods or services (or both).
46
Marketing schemes as pyramid schemes
(1) To decide, for the purpose of this
Schedule, whether a scheme that involves the marketing of goods or services (or
both) is a pyramid scheme, a court must have regard to the following matters in
working out whether participation payments under the scheme are entirely or
substantially induced by the prospect held out to new participants of
entitlement to recruitment payments:
(a) whether the participation payments
bear a reasonable relationship to the value of the goods or services that
participants are entitled to be supplied with under the scheme (as assessed, if
appropriate, by reference to the price of comparable goods or services
available elsewhere);
(b) the emphasis given in the
promotion of the scheme to the entitlement of participants to the supply of
goods or services by comparison with the emphasis given to their entitlement to
recruitment payments.
(2) Subsection (1) does not limit the
matters to which the court may have regard in working out whether participation
payments are entirely or substantially induced by the prospect held out to new
participants of entitlement to recruitment payments.
Division 4—Pricing
47
Multiple pricing
(1) A person must not, in trade or commerce,
supply goods if:
(a) the goods have more than one
displayed price; and
(b) the supply takes place for a price
that is not the lower, or lowest, of the displayed prices.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A displayed price for goods
is a price for the goods, or any representation that may reasonably be inferred
to be a representation of a price for the goods:
(a) that is annexed or affixed to, or
is written, printed, stamped or located on, or otherwise applied to, the goods
or any covering, label, reel or thing used in connection with the goods; or
(b) that is used in connection with
the goods or anything on which the goods are mounted for display or exposed for
supply; or
(c) that is determined on the basis of
anything encoded on or in relation to the goods; or
(d) that is published in relation to
the goods in a catalogue available to the public if:
(i) a time is specified in
the catalogue as the time after which the goods will not be sold at that price
and that time has not passed; or
(ii) in any other case—the
catalogue may reasonably be regarded as not out‑of‑date; or
(e) that is in any other way
represented in a manner from which it may reasonably be inferred that the price
or representation is applicable to the goods;
and includes such a price or representation that is partly
obscured by another such price or representation that is written, stamped or
located partly over that price or representation.
(3) If:
(a) a price or representation is
included in a catalogue; and
(b) the catalogue is expressed to
apply only to goods supplied at a specified location, or in a specified region;
the price or representation is taken, for the purposes of subsection (2)(d),
not to have been made in relation to supply of the goods at a different
location, or in a different region, as the case may be.
(4) Despite subsection (2), a price or
representation is not a displayed price for goods if:
(a) the price or representation is
wholly obscured by another such price or representation that is written,
stamped or located wholly over that price or representation; or
(b) the price or representation:
(i) is expressed as a
price per unit of mass, volume, length or other unit of measure; and
(ii) is presented as an
alternative means of expressing the price for supply of the goods that is a
displayed price for the goods; or
(c) the price or representation is
expressed as an amount in a currency other than Australian currency; or
(d) the price or representation is expressed
in a way that is unlikely to be interpreted as an amount of Australian
currency.
(5) Despite subsection (2), a displayed
price for goods that is a displayed price because it has been published in a
catalogue or advertisement ceases to be a displayed price for the goods if:
(a) the displayed price is retracted;
and
(b) the retraction is published in a
manner that has at least a similar circulation or audience as the catalogue or
advertisement.
48
Single price to be specified in certain circumstances
(1) A person must not, in trade or commerce,
in connection with:
(a) the supply, or possible supply, to
another person of goods or services of a kind ordinarily acquired for personal,
domestic or household use or consumption; or
(b) the promotion by any means of the
supply to another person, or of the use by another person, of goods or services
of a kind ordinarily acquired for personal, domestic or household use or
consumption;
make a representation with respect to an amount that, if
paid, would constitute a part of the consideration for the supply of the goods
or services unless the person also specifies, in a prominent way and as a
single figure, the single price for the goods or services.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person is not required to include, in
the single price for goods, a charge that is payable in relation to sending the
goods from the supplier to the other person.
(3) However, if:
(a) the person does not include in the
single price a charge that is payable in relation to sending the goods from the
supplier to the other person; and
(b) the person knows, at the time of
the representation, the minimum amount of a charge in relation to sending the
goods from the supplier to the other person that must be paid by the other
person;
the person must not make the representation referred to in
subsection (1) unless the person also specifies that minimum amount.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(4) Subsection (1) does not apply if the
representation is made exclusively to a body corporate.
(5) For the purposes of subsection (1),
the person is taken not to have specified a single price for the goods or
services in a prominent way unless the single price is at least as prominent as
the most prominent of the parts of the consideration for the supply.
(6) Subsection (5) does not apply in
relation to services to be supplied under a contract if:
(a) the contract provides for the
supply of the services for the term of the contract; and
(b) the contract provides for periodic
payments for the services to be made during the term of the contract; and
(c) if the contract also provides for
the supply of goods—the goods are directly related to the supply of the
services.
(7) The single price is the
minimum quantifiable consideration for the supply of the goods or services at
the time of the representation, including each of the following amounts (if
any) that is quantifiable at that time:
(a) a charge of any description
payable to the person making the representation by another person (other than a
charge that is payable at the option of the other person);
(b) the amount which reflects any tax,
duty, fee, levy or charge imposed on the person making the representation in
relation to the supply;
(c) any amount paid or payable by the
person making the representation in relation to the supply with respect to any
tax, duty, fee, levy or charge if:
(i) the amount is paid or
payable under an agreement or arrangement made under a law of the Commonwealth,
a State or a Territory; and
(ii) the tax, duty, fee,
levy or charge would have otherwise been payable by another person in relation
to the supply.
Example 1: A person advertises lounge suites for sale. Persons
have the option of paying for fabric protection. The fabric protection charge
does not form part of the single price because of the exception in paragraph (a).
Example 2: The GST may be an example of an amount covered by paragraph (b).
Example 3: The passenger movement charge imposed under the Passenger
Movement Charge Act 1978 may be an example of an amount covered by paragraph (c).
Under an arrangement under section 10 of the Passenger Movement Charge
Collection Act 1978, airlines may pay an amount equal to the charge that
would otherwise be payable by passengers departing Australia.
Division 5—Other unfair
practices
49
Referral selling
A person must not, in trade or commerce,
induce a consumer to acquire goods or services by representing that the
consumer will, after the contract for the acquisition of the goods or services
is made, receive a rebate, commission or other benefit in return for:
(a) giving the person the names of
prospective customers; or
(b) otherwise assisting the person to
supply goods or services to other consumers;
if receipt of the rebate, commission or other benefit is
contingent on an event occurring after that contract is made.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
50
Harassment and coercion
(1) A person must not use physical force, or
undue harassment or coercion, in connection with:
(a) the supply or possible supply of
goods or services; or
(b) the payment for goods or services;
or
(c) the sale or grant, or the possible
sale or grant, of an interest in land; or
(d) the payment for an interest in
land.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) Subsections (1)(c) and (d) do not
affect the application of any other provision of Part 2‑1 or this
Part in relation to the supply or acquisition, or the possible supply or
acquisition, of interests in land.
Part 3‑2—Consumer
transactions
Division 1—Consumer guarantees
Subdivision A—Guarantees relating to the supply of goods
51
Guarantee as to title
(1) If a person (the supplier)
supplies goods to a consumer, there is a guarantee that the supplier will have
a right to dispose of the property in the goods when that property is to pass
to the consumer.
(2) Subsection (1) does not apply to a
supply (a supply of limited title) if an intention that the
supplier of the goods should transfer only such title as the supplier, or
another person, may have:
(a) appears from the contract for the
supply; or
(b) is to be inferred from the
circumstances of that contract.
(3) This section does not apply if the supply
is a supply by way of hire or lease.
52
Guarantee as to undisturbed possession
(1) If:
(a) a person (the supplier)
supplies goods to a consumer; and
(b) the supply is not a supply of
limited title;
there is a guarantee that the consumer has the right to
undisturbed possession of the goods.
(2) Subsection (1) does not apply to the
extent that the consumer’s undisturbed possession of the goods may be lawfully
disturbed by a person who is entitled to the benefit of any security, charge or
encumbrance disclosed to the consumer before the consumer agreed to the supply.
(3) If:
(a) a person (the supplier)
supplies goods to a consumer; and
(b) the supply is a supply of limited
title;
there is a guarantee that the following persons will not
disturb the consumer’s possession of the goods:
(c) the supplier;
(d) if the parties to the contract for
the supply intend that the supplier should transfer only such title as another
person may have—that other person;
(e) anyone claiming through or under
the supplier or that other person (otherwise than under a security, charge or
encumbrance disclosed to the consumer before the consumer agreed to the
supply).
(4) This section applies to a supply by way
of hire or lease only for the period of the hire or lease.
53
Guarantee as to undisclosed securities etc.
(1) If:
(a) a person (the supplier)
supplies goods to a consumer; and
(b) the supply is not a supply of
limited title;
there is a guarantee that:
(c) the goods are free from any
security, charge or encumbrance:
(i) that was not disclosed
to the consumer, in writing, before the consumer agreed to the supply; or
(ii) that was not created
by or with the express consent of the consumer; and
(d) the goods will remain free from
such a security, charge or encumbrance until the time when the property in the
goods passes to the consumer.
(2) A supplier does not fail to comply with
the guarantee only because of the existence of a floating charge over the
supplier’s assets unless and until the charge becomes fixed and enforceable by
the person to whom the charge is given.
Note: Section 339 of the Personal Property
Securities Act 2009 affects the meaning of the references in this
subsection to a floating charge and a fixed charge.
(3) If:
(a) a person (the supplier)
supplies goods to a consumer; and
(b) the supply is a supply of limited
title;
there is a guarantee that all securities, charges or
encumbrances known to the supplier, and not known to the consumer, were
disclosed to the consumer before the consumer agreed to the supply.
(4) This section does not apply if the supply
is a supply by way of hire or lease.
54
Guarantee as to acceptable quality
(1) If:
(a) a person supplies, in trade or
commerce, goods to a consumer; and
(b) the supply does not occur by way
of sale by auction;
there is a guarantee that the goods are of acceptable
quality.
(2) Goods are of acceptable quality
if they are as:
(a) fit for all the purposes for which
goods of that kind are commonly supplied; and
(b) acceptable in appearance and
finish; and
(c) free from defects; and
(d) safe; and
(e) durable;
as a reasonable consumer fully acquainted with the state
and condition of the goods (including any hidden defects of the goods), would
regard as acceptable having regard to the matters in subsection (3).
(3) The matters for the purposes of subsection (2)
are:
(a) the nature of the goods; and
(b) the price of the goods (if
relevant); and
(c) any statements made about the
goods on any packaging or label on the goods; and
(d) any representation made about the
goods by the supplier or manufacturer of the goods; and
(e) any other relevant circumstances
relating to the supply of the goods.
(4) If:
(a) goods supplied to a consumer are
not of acceptable quality; and
(b) the only reason or reasons why
they are not of acceptable quality were specifically drawn to the consumer’s
attention before the consumer agreed to the supply;
the goods are taken to be of acceptable quality.
(5) If:
(a) goods are displayed for sale or
hire; and
(b) the goods would not be of
acceptable quality if they were supplied to a consumer;
the reason or reasons why they are not of acceptable
quality are taken, for the purposes of subsection (4), to have been specifically
drawn to a consumer’s attention if those reasons were disclosed on a written
notice that was displayed with the goods and that was transparent.
(6) Goods do not fail to be of acceptable
quality if:
(a) the consumer to whom they are
supplied causes them to become of unacceptable quality, or fails to take
reasonable steps to prevent them from becoming of unacceptable quality; and
(b) they are damaged by abnormal use.
(7) Goods do not fail to be of acceptable
quality if:
(a) the consumer acquiring the goods
examines them before the consumer agrees to the supply of the goods; and
(b) the examination ought reasonably
to have revealed that the goods were not of acceptable quality.
55 Guarantee as to fitness
for any disclosed purpose etc.
(1) If:
(a) a person (the supplier)
supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way
of sale by auction;
there is a guarantee that the goods are reasonably fit for
any disclosed purpose, and for any purpose for which the supplier represents
that they are reasonably fit.
(2) A disclosed purpose is a
particular purpose (whether or not that purpose is a purpose for which the
goods are commonly supplied) for which the goods are being acquired by the
consumer and that:
(a) the consumer makes known,
expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any
prior negotiations or arrangements in relation to the acquisition of the goods
were conducted or made; or
(b) the consumer makes known to the manufacturer
of the goods either directly or through the supplier or the person referred to
in paragraph (a)(ii).
(3) This section does not apply if the
circumstances show that the consumer did not rely on, or that it was
unreasonable for the consumer to rely on, the skill or judgment of the
supplier, the person referred to in subsection (2)(a)(ii) or the
manufacturer, as the case may be.
56
Guarantee relating to the supply of goods by description
(1) If:
(a) a person supplies, in trade or
commerce, goods by description to a consumer; and
(b) the supply does not occur by way
of sale by auction;
there is a guarantee that the goods correspond with the
description.
(2) A supply of goods is not prevented from
being a supply by description only because, having been exposed for sale or
hire, they are selected by the consumer.
(3) If goods are supplied by description as
well as by reference to a sample or demonstration model, the guarantees in this
section and in section 57 both apply.
57
Guarantees relating to the supply of goods by sample or demonstration model
(1) If:
(a) a person supplies, in trade or
commerce, goods to a consumer by reference to a sample or demonstration model;
and
(b) the supply does not occur by way
of sale by auction;
there is a guarantee that:
(c) the goods correspond with the
sample or demonstration model in quality, state or condition; and
(d) if the goods are supplied by
reference to a sample—the consumer will have a reasonable opportunity to
compare the goods with the sample; and
(e) the goods are free from any defect
that:
(i) would not be apparent
on reasonable examination of the sample or demonstration model; and
(ii) would cause the goods
not to be of acceptable quality.
(2) If goods are supplied by reference to a
sample or demonstration model as well as by description, the guarantees in
section 56 and in this section both apply.
58
Guarantee as to repairs and spare parts
(1) If:
(a) a person supplies, in trade or
commerce, goods to a consumer; and
(b) the supply does not occur by way
of sale by auction;
there is a guarantee that the manufacturer of the goods
will take reasonable action to ensure that facilities for the repair of the
goods, and parts for the goods, are reasonably available for a reasonable
period after the goods are supplied.
(2) This section does not apply if the
manufacturer took reasonable action to ensure that the consumer would be given
written notice, at or before the time when the consumer agrees to the supply of
the goods, that:
(a) facilities for the repair of the
goods would not be available or would not be available after a specified
period; or
(b) parts for the goods would not be
available or would not be available after a specified period.
59 Guarantee
as to express warranties
(1) If:
(a) a person supplies, in trade or
commerce, goods to a consumer; and
(b) the supply does not occur by way
of sale by auction;
there is a guarantee that the manufacturer of the goods
will comply with any express warranty given or made by the manufacturer in
relation to the goods.
(2) If:
(a) a person supplies, in trade or
commerce, goods to a consumer; and
(b) the supply does not occur by way
of sale by auction;
there is a guarantee that the supplier will comply with
any express warranty given or made by the supplier in relation to the goods.
Subdivision B—Guarantees relating to the supply of services
60
Guarantee as to due care and skill
If a person supplies, in trade or
commerce, services to a consumer, there is a guarantee that the services will be
rendered with due care and skill.
61
Guarantees as to fitness for a particular purpose etc.
(1) If:
(a) a person (the supplier)
supplies, in trade or commerce, services to a consumer; and
(b) the consumer, expressly or by
implication, makes known to the supplier any particular purpose for which the
services are being acquired by the consumer;
there is a guarantee that the services, and any product
resulting from the services, will be reasonably fit for that purpose.
(2) If:
(a) a person (the supplier)
supplies, in trade or commerce, services to a consumer; and
(b) the consumer makes known,
expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any
prior negotiations or arrangements in relation to the acquisition of the services
were conducted or made;
the result that the consumer
wishes the services to achieve;
there is a guarantee that the services, and any product
resulting from the services, will be of such a nature, and quality, state or
condition, that they might reasonably be expected to achieve that result.
(3) This section does not apply if the
circumstances show that the consumer did not rely on, or that it was
unreasonable for the consumer to rely on, the skill or judgment of the
supplier.
(4) This section does not apply to a supply
of services of a professional nature by a qualified architect or engineer.
62
Guarantee as to reasonable time for supply
If:
(a) a person (the supplier)
supplies, in trade or commerce, services to a consumer; and
(b) the time within which the services
are to be supplied:
(i) is not fixed by the
contract for the supply of the services; or
(ii) is not to be
determined in a manner agreed to by the consumer and supplier;
there is a guarantee that the services will be supplied
within a reasonable time.
63
Services to which this Subdivision does not apply
This Subdivision does not apply to
services that are, or are to be, supplied under:
(a) a contract for or in relation to
the transportation or storage of goods for the purposes of a business, trade,
profession or occupation carried on or engaged in by the person for whom the
goods are transported or stored; or
(b) a contract of insurance.
Subdivision C—Guarantees not to be excluded etc. by contract
64
Guarantees not to be excluded etc. by contract
(1) A term of a contract (including a term
that is not set out in the contract but is incorporated in the contract by
another term of the contract) is void to the extent that the term purports to
exclude, restrict or modify, or has the effect of excluding, restricting or
modifying:
(a) the application of all or any of
the provisions of this Division; or
(b) the exercise of a right conferred
by such a provision; or
(c) any liability of a person for a
failure to comply with a guarantee that applies under this Division to a supply
of goods or services.
(2) A term of a contract is not taken, for
the purposes of this section, to exclude, restrict or modify the application of
a provision of this Division unless the term does so expressly or is
inconsistent with the provision.
64A
Limitation of liability for failures to comply with guarantees
(1) A term of a contract for the supply by a
person of goods other than goods of a kind ordinarily acquired for personal,
domestic or household use or consumption is not void under section 64
merely because the term limits the person’s liability for failure to comply
with a guarantee (other than a guarantee under section 51, 52 or 53) to
one or more of the following:
(a) the replacement of the goods or the
supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of
replacing the goods or of acquiring equivalent goods;
(d) the payment of the cost of having
the goods repaired.
(2) A term of a contract for the supply by a
person of services other than services of a kind ordinarily acquired for
personal, domestic or household use or consumption is not void under
section 64 merely because the term limits the person’s liability for
failure to comply with a guarantee to:
(a) the supplying of the services
again; or
(b) the payment of the cost of having
the services supplied again.
(3) This section does not apply in relation
to a term of a contract if the person to whom the goods or services were
supplied establishes that it is not fair or reasonable for the person who
supplied the goods or services to rely on that term of the contract.
(4) In determining for the purposes of
subsection (3) whether or not reliance on a term of a contract is fair or
reasonable, a court is to have regard to all the circumstances of the case, and
in particular to the following matters:
(a) the strength of the bargaining
positions of the person who supplied the goods or services and the person to
whom the goods or services were supplied (the buyer) relative to
each other, taking into account, among other things, the availability of
equivalent goods or services and suitable alternative sources of supply;
(b) whether the buyer received an
inducement to agree to the term or, in agreeing to the term, had an opportunity
of acquiring the goods or services or equivalent goods or services from any
source of supply under a contract that did not include that term;
(c) whether the buyer knew or ought
reasonably to have known of the existence and extent of the term (having
regard, among other things, to any custom of the trade and any previous course
of dealing between the parties);
(d) in the case of the supply of
goods, whether the goods were manufactured, processed or adapted to the special
order of the buyer.
Subdivision D—Miscellaneous
65
Application of this Division to supplies of gas, electricity and
telecommunications
(1) This Division does not apply to a supply
if the supply:
(a) is a supply of a kind specified in
the regulations; and
(b) is a supply of gas, electricity or
a telecommunications service.
(2) A telecommunications service
is a service for carrying communications by means of guided or unguided
electromagnetic energy or both.
66
Display notices
(1) The Commonwealth Minister may determine,
in writing, that persons (the suppliers) who make supplies, or
supplies of a specified kind, to which guarantees apply under this Division are
required to display, in accordance with the determination, a notice that meets
the requirements of the determination.
(2) A supplier who makes a supply to a
consumer to which a guarantee applies under this Division, and to which such a
determination relates, must ensure that a notice that meets those requirements
is, in accordance with the determination:
(a) if the consumer takes delivery of
the goods or services at the supplier’s premises—displayed at those premises;
or
(b) otherwise—drawn to the consumer’s
attention before the consumer agrees to the supply of the goods.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) Without limiting subsection (1), a
determination under that subsection may do all or any of the following:
(a) require the notice to include
specified information about the application of all or any of the provisions of
this Division and Part 5‑4;
(b) specify where the notice must be
displayed;
(c) specify how the notice must be
drawn to the attention of consumers;
(d) specify requirements as to the
form of the notice.
67
Conflict of laws
If:
(a) the proper law of a contract for
the supply of goods or services to a consumer would be the law of any part of
Australia but for a term of the contract that provides otherwise; or
(b) a contract for the supply of goods
or services to a consumer contains a term that purports to substitute, or has
the effect of substituting, the following provisions for all or any of the
provisions of this Division:
(i) the provisions of the
law of a country other than Australia;
(ii) the provisions of the
law of a State or a Territory;
the provisions of this Division apply in relation to the
supply under the contract despite that term.
68
Convention on Contracts for the International Sale of Goods
The provisions of the United Nations
Convention on Contracts for the International Sale of Goods, done at Vienna on
11 April 1980, as amended and in force for Australia from time to time,
prevail over the provisions of this Division to the extent of any
inconsistency.
Note: The text of the Convention is set out in
Australian Treaty Series 1988 No. 32 ([1988] ATS 32). In 2010, the text of
a Convention in the Australian Treaty Series was accessible through the
Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Division 2—Unsolicited consumer
agreements
Subdivision A—Introduction
69
Meaning of unsolicited consumer agreement
(1) An agreement is an unsolicited
consumer agreement if:
(a) it is for the supply, in trade or
commerce, of goods or services to a consumer; and
(b) it is made as a result of
negotiations between a dealer and the consumer:
(i) in each other’s
presence at a place other than the business or trade premises of the supplier
of the goods or services; or
(ii) by telephone;
whether or not they are the only
negotiations that precede the making of the agreement; and
(c) the consumer did not invite the
dealer to come to that place, or to make a telephone call, for the purposes of
entering into negotiations relating to the supply of those goods or services
(whether or not the consumer made such an invitation in relation to a different
supply); and
(d) the total price paid or payable by
the consumer under the agreement:
(i) is not ascertainable
at the time the agreement is made; or
(ii) if it is ascertainable
at that time—is more than $100 or such other amount prescribed by the
regulations.
(1A) The consumer is not taken, for the purposes
of subsection (1)(c), to have invited the dealer to come to that place, or
to make a telephone call, merely because the consumer has:
(a) given his or her name or contact
details other than for the predominant purpose of entering into negotiations
relating to the supply of the goods or services referred to in
subsection (1)(c); or
(b) contacted the dealer in connection
with an unsuccessful attempt by the dealer to contact the consumer.
(2) An invitation merely to quote a price for
a supply is not taken, for the purposes of subsection (1)(c), to be an
invitation to enter into negotiations for a supply.
(3) An agreement is also an unsolicited
consumer agreement if it is an agreement of a kind that the regulations
provide are unsolicited consumer agreements.
(4) However, despite subsections (1) and
(3), an agreement is not an unsolicited consumer agreement if it
is an agreement of a kind that the regulations provide are not unsolicited
consumer agreements.
70
Presumption that agreements are unsolicited consumer agreements
(1) In a proceeding relating to a
contravention or possible contravention of this Division (other than a criminal
proceeding), an agreement is presumed to be an unsolicited consumer agreement
if:
(a) a party to the proceeding alleges
that the agreement is an unsolicited consumer agreement; and
(b) no other party to the proceeding
proves that the agreement is not an unsolicited consumer agreement.
(2) In a proceeding relating to a
contravention or possible contravention of this Division (other than a criminal
proceeding), it is presumed that a proposed agreement would be an unsolicited
consumer agreement if it were made if:
(a) a party to the proceeding alleges
that the proposed agreement would be an unsolicited consumer agreement if it
were made; and
(b) no other party to the proceeding
proves that the proposed agreement would not be an unsolicited consumer
agreement if it were made.
71
Meaning of dealer
A dealer is a person who,
in trade or commerce:
(a) enters into negotiations with a
consumer with a view to making an agreement for the supply of goods or services
to the consumer; or
(b) calls on, or telephones, a
consumer for the purpose of entering into such negotiations;
whether or not that person is, or is to be, the supplier
of the goods or services.
72
Meaning of negotiation
A negotiation, in relation
to an agreement or a proposed agreement, includes any discussion or dealing
directed towards the making of the agreement or proposed agreement (whether or
not the terms of the agreement or proposed agreement are open to any discussion
or dealing).
Subdivision B—Negotiating unsolicited consumer agreements
73
Permitted hours for negotiating an unsolicited consumer agreement
(1) A dealer must not call on a person for
the purpose of negotiating an unsolicited consumer agreement, or for an
incidental or related purpose:
(a) at any time on a Sunday or a
public holiday; or
(b) before 9 am on any other day; or
(c) after 6 pm on any other day (or
after 5 pm if the other day is a Saturday).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) Subsection (1) does not apply if the
dealer calls on the person in accordance with consent that:
(a) was given by the person to the
dealer or a person acting on the dealer’s behalf; and
(b) was not given in the presence of
the dealer or a person acting on the dealer’s behalf.
Note: The Do Not Call Register Act 2006 may
apply to a telephone call made for the purpose of negotiating an unsolicited
consumer agreement.
74
Disclosing purpose and identity
A dealer who calls on a person for the
purpose of negotiating an unsolicited consumer agreement, or for an incidental
or related purpose, must, as soon as practicable and in any event before
starting to negotiate:
(a) clearly advise the person that the
dealer’s purpose is to seek the person’s agreement to a supply of the goods or
services concerned; and
(b) clearly advise the person that the
dealer is obliged to leave the premises immediately on request; and
(c) provide to the person such
information relating to the dealer’s identity as is prescribed by the
regulations.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
75
Ceasing to negotiate on request
(1) A dealer who calls on a person at any
premises for the purpose of negotiating an unsolicited consumer agreement, or
for an incidental or related purpose, must leave the premises immediately on
the request of:
(a) the occupier of the premises, or
any person acting with the actual or apparent authority of the occupier; or
(b) the person (the prospective
consumer) with whom the negotiations are being conducted.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) If the prospective consumer makes such a
request, the dealer must not contact the prospective consumer for the purpose
of negotiating an unsolicited consumer agreement (or for an incidental or
related purpose) for at least 30 days after the prospective consumer makes the
request.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) If the dealer is not, or is not to be,
the supplier of the goods or services to which the negotiations relate:
(a) subsection (2) applies to
that supplier, and any person acting on behalf of that supplier, in the same
way that it applies to the dealer; but
(b) subsection (2) does not apply
to the dealer contacting the prospective customer in relation to a supply by
another supplier.
76
Informing person of termination period etc.
A dealer must not make an unsolicited
consumer agreement with a person unless:
(a) before the agreement is made, the
person is given information as to the following:
(i) the person’s right to
terminate the agreement during the termination period;
(ii) the way in which the
person may exercise that right;
(iii) such other matters as
are prescribed by the regulations; and
(b) if the agreement is made in the
presence of both the dealer and the person—the person is given the information
in writing; and
(c) if the agreement is made by
telephone—the person is given the information by telephone, and is subsequently
given the information in writing; and
(d) the form in which, and the way in
which, the person is given the information complies with any other requirements
prescribed by the regulations.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
77
Liability of suppliers for contraventions by dealers
If:
(a) a dealer contravenes a provision
of this Subdivision in relation to an unsolicited consumer agreement; and
(b) the dealer is not, or is not to
be, the supplier of the goods or services to which the agreement relates;
the supplier of the goods or services is also taken to
have contravened that provision in relation to the agreement.
Subdivision C—Requirements for unsolicited consumer agreements etc.
78
Requirement to give document to the consumer
(1) If an unsolicited consumer agreement was
not negotiated by telephone, the dealer who negotiated the agreement must give
a copy of the agreement to the consumer under the agreement immediately after
the consumer signs the agreement.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) If an unsolicited consumer agreement was
negotiated by telephone, the dealer who negotiated the agreement must, within 5
business days after the agreement was made or such longer period agreed by the
parties, give to the consumer under the agreement:
(a) personally; or
(b) by post; or
(c) with the consumer’s consent—by
electronic communication;
a document (the agreement document)
evidencing the agreement.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) An unsolicited consumer agreement was negotiated
by telephone if the negotiations that resulted in the making of the
agreement took place by telephone (whether or not other negotiations preceded
the making of the agreement).
79
Requirements for all unsolicited consumer agreements etc.
The supplier under an unsolicited
consumer agreement must ensure that the agreement, or (if the agreement was
negotiated by telephone) the agreement document, complies with the following
requirements:
(a) it must set out in full all the
terms of the agreement, including:
(i) the total
consideration to be paid or provided by the consumer under the agreement or, if
the total consideration is not ascertainable at the time the agreement is made,
the way in which it is to be calculated; and
(ii) any postal or delivery
charges to be paid by the consumer;
(b) its front page must include a
notice that:
(i) conspicuously and
prominently informs the consumer of the consumer’s right to terminate the
agreement; and
(ii) conspicuously and
prominently sets out any other information prescribed by the regulations; and
(iii) complies with any other
requirements prescribed by the regulations;
(c) it must be accompanied by a notice
that:
(i) may be used by the
consumer to terminate the agreement; and
(ii) complies with any
requirements prescribed by the regulations;
(d) it must conspicuously and
prominently set out in full:
(i) the supplier’s name;
and
(ii) if the supplier has an
ABN—the supplier’s ABN; and
(iii) if the supplier does
not have an ABN but has an ACN—the supplier’s ACN; and
(iv) the supplier’s business
address (not being a post box) or, if the supplier does not have a business
address, the supplier’s residential address; and
(v) if the supplier has an
email address—the supplier’s email address; and
(vi) if the supplier has a
fax number—the supplier’s fax number;
(e) it must be printed clearly or
typewritten (apart from any amendments to the printed or typewritten form,
which may be handwritten);
(f) it must be transparent.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
80
Additional requirements for unsolicited consumer agreements not negotiated by
telephone
The supplier under an unsolicited
consumer agreement that was not negotiated by telephone must ensure that, in
addition to complying with the requirements of section 79, the agreement
complies with the following requirements:
(a) the agreement must be signed by
the consumer under the agreement;
(b) if the agreement is signed by a
person on the supplier’s behalf—the agreement must state that the person is
acting on the supplier’s behalf, and must set out in full:
(i) the person’s name; and
(ii) the person’s business
address (not being a post box) or, if the person does not have a business
address, the person’s residential address; and
(iii) if the person has an
email address—the person’s email address.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
81
Requirements for amendments of unsolicited consumer agreements
The supplier under an unsolicited
consumer agreement must ensure that any amendments to the agreement are signed
by both parties to the agreement.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
Subdivision D—Terminating unsolicited consumer agreements
82
Terminating an unsolicited consumer agreement during the termination period
(1) The consumer under an unsolicited
consumer agreement may, during the period provided under subsection (3),
terminate the agreement by indicating, in an oral or written notice to the
supplier under the agreement, an intention to terminate the agreement.
(2) A right of termination under this section
may be exercised:
(a) despite affirmation of the
agreement by the consumer; and
(b) even though the agreement has been
fully executed.
(3) The period during which the consumer may
terminate the agreement is whichever of the following periods is the longest:
(a) if the agreement was not
negotiated by telephone—the period of 10 business days starting at the start of
the first business day after the day on which the agreement was made;
(b) if the agreement was negotiated by
telephone—the period of 10 business days starting at the start of the first
business day after the day on which the consumer was given the agreement
document relating to the agreement;
(c) if one or more of the following
were contravened in relation to the agreement:
(i) section 73
(permitted hours for negotiating an unsolicited consumer agreement);
(ii) section 74
(disclosing purpose and identity);
(iii) section 75
(ceasing to negotiate on request);
the period of 3 months starting
at the start of the first day after the day on which the agreement was made or,
if the agreement was negotiated by telephone, the agreement document was given;
(d) if one or more of the following
were contravened in relation to the agreement:
(i) section 76
(informing consumer of termination period);
(ii) a provision of Subdivision
C (requirements for unsolicited consumer agreements);
(iii) section 86
(prohibition on supplies for 10 business days);
the period of 6 months starting
at the start of the first day after the day on which the agreement was made or,
if the agreement was negotiated by telephone, the agreement document was given;
(e) such other period as the agreement
provides.
(4) If the notice under subsection (1)
is written, it may be given:
(a) by delivering it personally to the
supplier; or
(b) by delivering it, or sending it by
post, in an envelope addressed to the supplier, to the supplier’s address
referred to in section 79(d)(iv); or
(c) if the supplier has an email
address—by sending it to the supplier’s email address referred to in section 79(d)(v);
or
(d) if the supplier has a fax
number—by faxing it to the supplier’s fax number referred to in section 79(d)(vi).
(5) A notice under subsection (1) sent
by post to a supplier is taken to have been given to the supplier at the time
of posting.
(6) There are no requirements relating to the
form or content of a notice under subsection (1).
83 Effect
of termination
(1) If an unsolicited consumer agreement is
terminated in accordance with section 82:
(a) the agreement is taken to have
been rescinded by mutual consent; and
(b) any related contract or instrument
is void.
(2) A related contract or instrument,
in relation to an unsolicited consumer agreement, is:
(a) any contract of guarantee or
indemnity that is related to the agreement; or
(b) any instrument related to the
agreement that creates a mortgage or charge in favour of the supplier under the
contract or the dealer in relation to the contract (or a person nominated by
the supplier or dealer); or
(c) any contract or instrument (other
than an instrument of a kind referred to in paragraph (b)) that is
collateral or related to the agreement;
but does not include a tied continuing credit contract
(within the meaning of section 127(2) of Schedule 1 to the National
Consumer Credit Protection Act 2009), or a tied loan contract
(within the meaning of section 127(3) of that Schedule).
(3) The termination of an unsolicited
consumer agreement has effect for the purposes of section 82 and this
section even if:
(a) the supplier under the agreement
has not received the notice of termination; or
(b) the goods or services supplied
under the agreement have been wholly or partly consumed or used.
84
Obligations of suppliers on termination
If an unsolicited consumer agreement is
terminated in accordance with section 82, the supplier under the agreement
must, immediately upon being notified of the termination, return or refund to
the consumer under the agreement any consideration (or the value of any
consideration) that the consumer gave under the agreement or a related contract
or instrument.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
85
Obligations and rights of consumers on termination
(1) If an unsolicited consumer agreement is
terminated in accordance with section 82, the consumer under the agreement
must, within a reasonable time:
(a) return to the supplier under the
agreement any goods:
(i) that have been
received from the supplier under the agreement; and
(ii) that the consumer has
not already consumed; or
(b) notify the supplier of the place
where the supplier may collect the goods.
(2) The goods become the property of the
consumer, freed and discharged from all liens and charges of any description,
if:
(a) the consumer gives notice to the
supplier under subsection (1)(b); and
(b) the supplier does not collect the
goods within 30 days after the termination of the contract.
(3) If:
(a) the agreement is terminated in
accordance with section 82 after the end of the period of 10 business days
starting:
(i) if the agreement was
not negotiated by telephone—at the start of the first business day after the
day on which the agreement was made; or
(ii) if the agreement was
negotiated by telephone—at the start of the first business day after the day on
which the consumer was given the agreement document relating to the agreement;
and
(b) the consumer returns the goods to
the supplier, or the supplier collects the goods, under this section; and
(c) the consumer has failed to take
reasonable care of the goods;
the consumer is liable to pay compensation to the supplier
for the damage to, or depreciation in the value of, the goods.
(4) The compensation is recoverable in a
court of competent jurisdiction.
(5) However, the consumer is not liable for
any such damage or depreciation attributable to normal use of the goods or to circumstances
beyond the consumer’s control.
(6) If:
(a) an unsolicited consumer agreement
is terminated in accordance with section 82 after the end of the period of
10 business days starting:
(i) if the agreement was
not negotiated by telephone—at the start of the first business day after the
day on which the agreement was made; or
(ii) if the agreement was
negotiated by telephone—at the start of the first business day after the day on
which the consumer was given the agreement document relating to the agreement;
and
(b) prior to the termination, but
after the end of that period, a service was supplied under the agreement;
the termination does not affect any liability of the
consumer under the agreement to provide consideration for the service.
86 Prohibition
on supplies etc. for 10 business days
(1) The supplier under an unsolicited
consumer agreement must not:
(a) supply to the consumer under the
agreement the goods or services to be supplied under the agreement; or
(b) accept any payment, or any other
consideration, in connection with those goods or services; or
(c) require any payment, or any other
consideration, in connection with those goods or services;
during the period of 10 business days starting:
(d) if the agreement was not
negotiated by telephone—at the start of the first business day after the day on
which the agreement was made; or
(e) if the agreement was negotiated by
telephone—at the start of the first business day after the day on which the
consumer was given the agreement document relating to the agreement.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) If the supplier supplies goods to the
consumer in contravention of this section, the consumer has the same rights in
relation to the goods as if the goods were unsolicited goods.
Note: Section 41 deals with unsolicited goods.
(3) If the supplier supplies services to the
consumer in contravention of this section, the consumer has the same rights in
relation to the services as if the services were unsolicited services.
Note: Section 42 deals with unsolicited
services.
87
Repayment of payments received after termination
If an unsolicited consumer agreement is
terminated in accordance with section 82, the supplier under the agreement
must immediately refund to the consumer under the agreement any payment:
(a) that the consumer, or a person
acting on the consumer’s behalf, makes to the supplier after the termination;
and
(b) that purports to be made under the
agreement or a related contract or instrument.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
88
Prohibition on recovering amounts after termination
(1) If an unsolicited consumer agreement is
terminated in accordance with section 82, a person must not:
(a) bring, or assert an intention to
bring, legal proceedings against the consumer; or
(b) take, or assert an intention to
take, any other action against the consumer;
in relation to an amount alleged to be payable, under the
agreement or a related contract or instrument, by the consumer under the
agreement.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(1A) Subsection (1) does not apply to:
(a) bringing, or asserting an
intention to bring, legal proceedings against the consumer; or
(b) taking, or asserting an intention
to take, any other action against the consumer;
to enforce a liability under section 85(3), or a
liability of a kind referred to in section 85(6).
(2) If an unsolicited consumer agreement is
terminated in accordance with section 82, a person must not, for the
purpose of recovering an amount alleged to be payable, under the agreement or a
related contract or instrument, by the consumer under the agreement:
(a) place the consumer’s name, or
cause the consumer’s name to be placed, on a list of defaulters or debtors; or
(b) assert an intention to place the
consumer’s name, or cause the consumer’s name to be placed, on such a list.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) Without limiting Division 2 of Part 5‑2,
an injunction granted under that Division may require a person responsible for
keeping a list of defaulters or debtors on which the consumer’s name has been
wrongly placed to remove the name from that list.
Subdivision E—Miscellaneous
89
Certain provisions of unsolicited consumer agreements void
(1) A provision (however described) of an
unsolicited consumer agreement is void if it has the effect of, or purports to
have the effect of:
(a) excluding, limiting, modifying or
restricting a right of the consumer under the agreement to terminate the
agreement under this Division; or
(b) otherwise excluding, limiting,
modifying or restricting the effect or operation of this Division; or
(c) making a dispute relating to the
agreement, or to a supply to which the agreement relates, justiciable by a
court by which the dispute would not otherwise be justiciable.
(2) The supplier under an unsolicited
consumer agreement must ensure that the agreement does not include, or purport
to include, a provision (however described) that is, or would be, void because
of subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) The supplier under an unsolicited
consumer agreement must not attempt to enforce or rely on a provision (however
described) that is void because of subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
90
Waiver of rights
(1) The consumer under an unsolicited
consumer agreement is not competent to waive any right conferred by this
Division.
(2) The supplier under the unsolicited
consumer agreement must not induce, or attempt to induce, the consumer to waive
any right conferred by this Division.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
91
Application of this Division to persons to whom rights of consumers and
suppliers are assigned etc.
(1) This Division applies in relation to a
person to whom the rights of a consumer (the original consumer)
under a contract for the supply of goods or services are assigned or
transferred, or pass by operation of law, (whether from the original consumer
or from another person) as if the person were the original consumer.
(2) This Division applies in relation to a
person to whom the rights of a supplier (the original supplier)
under a contract for the supply of goods or services are assigned or
transferred, or pass by operation of law, (whether from the original supplier
or from another person) as if the person were the original supplier.
92
Application of this Division to supplies to third parties
This Division applies in relation to a
contract for the supply of goods or services to a consumer (the original
consumer) on the order of another person as if the other person were
also the consumer.
93
Effect of contravening this Division
(1) The supplier under an unsolicited
consumer agreement cannot enforce the agreement against the consumer under the
agreement if a provision of this Division (other than section 85) has been
contravened in relation to the agreement.
(2) This section does not prevent any action
being taken under this Schedule in relation to the contravention.
94
Regulations may limit the application of this Division
This Division (other than section 73)
does not apply, or provisions of this Division (other than section 73)
that are specified in the regulations do not apply, to or in relation to:
(a) circumstances of a kind specified
in the regulations; or
(b) agreements of a kind specified in
the regulations; or
(c) the conduct of businesses of a
kind specified in the regulations.
95
Application of this Division to certain conduct covered by the Corporations Act
This Division does not apply in relation
to conduct to which section 736, 992A or 992AA of the Corporations Act
2001 applies.
Note: Section 736 of the Corporations Act
2001 prohibits hawking of securities. Section 992A of that Act
prohibits hawking of certain financial products. Section 992AA of that Act
prohibits hawking of managed investment products.
Division 3—Lay‑by
agreements
96 Lay‑by
agreements must be in writing etc.
(1) A supplier of consumer goods who is a
party to a lay‑by agreement must ensure that:
(a) the agreement is in writing; and
(b) a copy of the agreement is given
to the consumer to whom the goods are, or are to be, supplied.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A supplier of consumer goods who is a
party to a lay‑by agreement must ensure that the agreement is
transparent.
(3) A lay‑by agreement is
an agreement between a supplier of consumer goods and a consumer for the
supply, in trade or commerce, of the consumer goods on terms (whether express
or implied) which provide that:
(a) the goods will not be delivered to
the consumer until the total price of the goods has been paid; and
(b) the price of the goods is to be
paid by:
(i) 3 or more instalments;
or
(ii) if the agreement
specifies that it is a lay‑by agreement—2 or more instalments.
(4) For the purposes of subsection (3)(b),
any deposit paid by the consumer for the consumer goods is taken to be an
instalment.
97
Termination of lay‑by agreements by consumers
(1) A consumer who is party to a lay‑by
agreement may terminate the agreement at any time before the consumer goods to
which the agreement relates are delivered to the consumer under the agreement.
(2) A supplier of consumer goods who is a
party to a lay‑by agreement must ensure that the agreement does not
require the consumer to pay a charge (a termination charge) for
the termination of the agreement unless:
(a) the agreement is terminated by the
consumer; and
(b) the supplier has not breached the
agreement.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) A supplier of consumer goods who is a
party to a lay‑by agreement must ensure that, if the agreement provides
that a termination charge is payable, the amount of the charge is not more than
the supplier’s reasonable costs in relation to the agreement.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
98
Termination of lay‑by agreements by suppliers
A supplier of consumer goods who is a
party to a lay‑by agreement must not terminate the agreement unless:
(a) the consumer who is a party to the
agreement breached a term of the agreement; or
(b) the supplier is no longer engaged
in trade or commerce; or
(c) the consumer goods to which the
agreement relates are no longer available.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
99
Effect of termination
(1) If a lay‑by agreement is terminated
by a party to the agreement, the supplier must refund to the consumer all the
amounts paid by the consumer under the agreement other than any termination
charge that is payable under the agreement.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) The supplier is entitled to recover any
unpaid termination charge from the consumer as a debt if the amounts paid by
the consumer under the lay‑by agreement are not enough to cover the
charge.
(3) If a lay‑by agreement is terminated
by a party to the agreement, the supplier is not entitled to damages, or to
enforce any other remedy, in relation to that termination except as provided
for by this section.
Division 4—Miscellaneous
100
Supplier must provide proof of transaction etc.
(1) If:
(a) a person (the supplier),
in trade or commerce, supplies goods or services to a consumer; and
(b) the total price (excluding GST) of
the goods or services is $75 or more;
the supplier must give the consumer a proof of transaction
as soon as practicable after the goods or services are so supplied.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) If:
(a) a person (the supplier),
in trade or commerce, supplies goods or services to a consumer; and
(b) the total price (excluding GST) of
the goods or services is less than $75;
the consumer may request a proof of transaction from the
supplier as soon as practicable after the goods or services are so supplied.
(3) If a request is made under subsection (2),
the supplier must give the proof of transaction within 7 days after the request
is made.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(4) A proof of transaction for
a supply of goods or services to a consumer is a document that:
(a) identifies the supplier of the
goods or services; and
(b) if the supplier has an ABN—states
the supplier’s ABN; and
(c) if the supplier does not have an
ABN but has an ACN—states the supplier’s ACN; and
(d) states the date of the supply; and
(e) states the goods or services
supplied to the consumer; and
(f) states the price of the goods or
services.
Note: The following are examples of a proof of
transaction:
(a) a tax invoice within the meaning of the A New Tax
System (Goods and Services Tax) Act 1999;
(b) a cash register receipt;
(c) a credit card or debit card statement;
(d) a handwritten receipt;
(e) a lay‑by agreement;
(f) a confirmation or receipt number provided for a
telephone or internet transaction.
(5) The supplier must ensure that the proof
of transaction given under subsection (1) or (3) is transparent.
101
Consumer may request an itemised bill
(1) If a person (the supplier),
in trade or commerce, supplies services to a consumer, the consumer may request
that the supplier give the consumer an itemised bill that:
(a) specifies how the price of the
services was calculated; and
(b) includes, if applicable, the
number of hours of labour that related to the supply of the services and the
hourly rate for that labour; and
(c) includes, if applicable, a list of
the materials used to supply the services and the amount charged for those
materials.
(2) The request under subsection (1)
must be made within 30 days after:
(a) the services are supplied; or
(b) the consumer receives a bill or
account from the supplier for the supply of the services;
whichever occurs later.
(3) The supplier must give the consumer the
itemised bill within 7 days after the request is made.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(4) The supplier must not charge the consumer
for the itemised bill.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(5) The supplier must ensure that the
itemised bill is transparent.
102
Prescribed requirements for warranties against defects
(1) The regulations may prescribe
requirements relating to the form and content of warranties against defects.
(2) A person must not, in connection with the
supply, in trade or commerce, of goods or services to a consumer:
(a) give to the consumer a document
that evidences a warranty against defects that does not comply with the
requirements prescribed for the purposes of subsection (1); or
(b) represent directly to the consumer
that the goods or services are goods or services to which such a warranty
against defects relates.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) A warranty against defects
is a representation communicated to a consumer in connection with the supply of
goods or services, at or about the time of supply, to the effect that a person
will (unconditionally or on specified conditions):
(a) repair or replace the goods or
part of them; or
(b) provide again or rectify the
services or part of them; or
(c) wholly or partly recompense the
consumer;
if the goods or services or part of them are defective,
and includes any document by which such a representation is evidenced.
103
Repairers must comply with prescribed requirements
(1) The regulations may prescribe
requirements relating to the form and content of notices to be given relating
to the repair of consumer goods.
(2) A person (the repairer)
must not, in trade or commerce, accept from another person goods that the other
person acquired as a consumer if the repairer:
(a) accepts the goods for the purpose
of repairing them; and
(b) does not give to the other person
a notice that complies with the requirements prescribed for the purposes of subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
Part 3‑3—Safety of
consumer goods and product related services
Division 1—Safety standards
104
Making safety standards for consumer goods and product related services
(1) The Commonwealth Minister may, by written
notice published on the internet, make a safety standard for one
or both of the following:
(a) consumer goods of a particular
kind;
(b) product related services of a
particular kind.
(2) A safety standard for consumer goods of a
particular kind may consist of such requirements about the following matters as
are reasonably necessary to prevent or reduce risk of injury to any person:
(a) the performance, composition,
contents, methods of manufacture or processing, design, construction, finish or
packaging of consumer goods of that kind;
(b) the testing of consumer goods of
that kind during, or after the completion of, manufacture or processing;
(c) the
form and content of markings, warnings or instructions to accompany consumer
goods of that kind.
(3) A safety standard for product related
services of a particular kind may consist of such requirements about the
following matters as are reasonably necessary to prevent or reduce risk of
injury to any person:
(a) the manner in which services of
that kind are supplied (including, but not limited to, the method of supply);
(b) the skills or qualifications of
persons who supply such services;
(c) the materials used in supplying
such services;
(d) the testing of such services;
(e) the
form and content of warnings, instructions or other information about such
services.
105
Declaring safety standards for consumer goods and product related services
(1) The Commonwealth Minister may, by written
notice published on the internet, declare that the following is a safety
standard for consumer goods, or product related services, of a kind
specified in the instrument:
(a) a particular standard, or a
particular part of a standard, prepared or approved by Standards Australia
International Limited or by an association prescribed by the regulations;
(b) such a standard, or such a part of
a standard, with additions or variations specified in the notice.
(2) The Commonwealth Minister must not
declare under subsection (1) that a standard, or a part of a standard,
referred to in that subsection is a safety standard for:
(a) consumer goods of a particular
kind; or
(b) product related services of a
particular kind;
if that standard or part is inconsistent with a safety
standard for those goods or services that is in force and that was made under
section 104(1).
106
Supplying etc. consumer goods that do not comply with safety standards
(1) A person must not, in trade or commerce,
supply consumer goods of a particular kind if:
(a) a safety standard for consumer
goods of that kind is in force; and
(b) those goods do not comply with the
standard.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person must not, in trade or commerce,
offer for supply (other than for export) consumer goods the supply of which is
prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) A person must not, in or for the purposes
of trade or commerce, manufacture, possess or have control of consumer goods
the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(4) In a proceeding under Part 5‑2
in relation to a contravention of subsection (3), it is a defence if the
defendant proves that the defendant’s manufacture, possession or control of the
goods was not for the purpose of supplying the goods (other than for export).
(5) A person must not, in trade or commerce,
export consumer goods the supply of which is prohibited by subsection (1)
unless:
(a) the person applies, in writing, to
the Commonwealth Minister for an approval to export those goods; and
(b) the Commonwealth Minister gives
such an approval by written notice given to the person.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(6) If the Commonwealth Minister gives an
approval under subsection (5), he or she must cause a statement setting out
particulars of the approval to be tabled in each House of the Parliament of the
Commonwealth within 7 sitting days of that House after the approval is given.
(7) If:
(a) a person supplies consumer goods
in contravention of this section; and
(b) another person suffers loss or
damage:
(i) because of a defect
in, or a dangerous characteristic of, the goods; or
(ii) because of a
reasonably foreseeable use (including a misuse) of the goods; or
(iii) because, contrary to
the safety standard, he or she was not provided with particular information in
relation to the goods; and
(c) the other person would not have
suffered the loss or damage if the goods had complied with the safety standard;
the other person is taken, for the purposes of this
Schedule, to have suffered the loss or damage because of that supply.
107
Supplying etc. product related services that do not comply with safety
standards
(1) A person must not, in trade or commerce,
supply product related services of particular kind if:
(a) a safety standard for services of
that kind is in force; and
(b) those services do not comply with
the standard.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person must not, in trade or commerce,
offer for supply product related services the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) If:
(a) a person supplies product related
services in contravention of this section; and
(b) another person suffers loss or
damage:
(i) because of defect in,
or a dangerous characteristic of, consumer goods that results from the services
being supplied; or
(ii) because of a
reasonably foreseeable use (including a misuse) of consumer goods that results
from the services being supplied; or
(iii) because, contrary to
the safety standard, he or she was not provided with particular information in
relation to the services; and
(c) the other person would not have
suffered the loss or damage if the services had complied with the safety
standard;
the other person is taken, for the purposes of this
Schedule, to have suffered the loss or damage because of that supply.
108
Requirement to nominate a safety standard
If:
(a) a safety standard for consumer
goods of a particular kind is in force; and
(b) the standard specifies, as
alternative methods of complying with the standard (or part of the standard), 2
or more sets of requirements relating to goods of that kind; and
(c) the regulator gives to a supplier of
goods of that kind a written request that the supplier nominate which of those
sets of requirements the supplier intends to comply with as the supplier’s
method of complying with the standard;
the supplier must, within the period specified in the
request, give to the regulator a written notice specifying which of those sets
of requirements the supplier intends to comply with as the supplier’s method of
complying with the standard.
Division 2—Bans on consumer
goods and product related services
Subdivision A—Interim bans
109
Interim bans on consumer goods or product related services that will or may
cause injury to any person etc.
(1) A responsible Minister may, by written
notice published on the internet, impose an interim ban on
consumer goods of a particular kind if:
(a) it appears to the responsible
Minister that:
(i) consumer goods of that
kind will or may cause injury to any person; or
(ii) a reasonably
foreseeable use (including a misuse) of consumer goods of that kind will or may
cause injury to any person; or
(b) another responsible Minister has
imposed, under paragraph (a), an interim ban:
(i) on consumer goods of
the same kind; or
(ii) on consumer goods of a
kind that includes those goods;
and that ban is still in force.
(2) A responsible Minister may, by written
notice published on the internet, impose an interim ban on
product related services of a particular kind if:
(a) it appears to the responsible
Minister that:
(i) as a result of
services of that kind being supplied, consumer goods of a particular kind will
or may cause injury to any person; or
(ii) a reasonably
foreseeable use (including a misuse) of consumer goods of a particular kind, to
which such services relate, will or may cause injury to any person as a result
of such services being supplied; or
(b) another responsible Minister has
imposed, under paragraph (a), an interim ban:
(i) on product related
services of the same kind; or
(ii) on product related
services that include those services;
and that ban is still in force.
110
Places in which interim bans apply
(1) An interim ban imposed by the
Commonwealth Minister applies in all States and Territories.
(2) An interim ban imposed by a responsible
Minister who is Minister of a State applies in the State.
(3) An interim ban imposed by a responsible
Minister who is a Minister of a Territory applies in the Territory.
111
Ban period for interim bans
(1) An interim ban imposed by a responsible
Minister is in force during the period (the ban period) that:
(a) starts on the day (the start
day) specified in the notice imposing the ban; and
(b) subject to this Subdivision, ends
at the end of 60 days after the start day.
(2) Before the ban period for the interim ban
ends, the responsible Minister may, by written notice published on the
internet, extend the ban period for the ban by a period of up to 30 days.
(3) If:
(a) the ban period for the interim ban
is extended under subsection (2); and
(b) the extended ban period for the
ban has not ended; and
(c) the interim ban was not imposed by
the Commonwealth Minister;
the responsible Minister may, in writing, request the
Commonwealth Minister to extend the extended ban period for the ban.
(4) If a request is made under subsection (3),
the Commonwealth Minister may, by written notice published on the internet,
extend the extended ban period for the interim ban by a further period of up to
30 days.
(5) If:
(a) a request is made under subsection (3);
and
(b) the Commonwealth Minister has not
made a decision on the request immediately before the extended ban period for
the interim ban is to end;
the Commonwealth Minister is taken to have decided to
extend the extended ban period for the ban by a further period of 30 days.
(6) If:
(a) the ban period for the interim ban
is extended under subsection (2); and
(b) the extended ban period for the
ban has not ended; and
(c) the interim ban was imposed by the
Commonwealth Minister;
the Commonwealth Minister may, by written notice published
on the internet, extend the extended ban period for the interim ban by a
further period of up to 30 days.
112
Interaction of multiple interim bans
(1) If:
(a) an interim ban (the original
ban) on consumer goods of a particular kind (the banned goods)
is imposed by a responsible Minister other than the Commonwealth Minister; and
(b) while the original ban is in
force, the Commonwealth Minister imposes an interim ban (the Commonwealth
ban):
(i) on the banned goods;
or
(ii) on consumer goods of a
kind that includes the banned goods;
the original ban, to the extent that it is a ban on the
banned goods, ceases to be in force immediately before the Commonwealth ban
comes into force.
(2) If:
(a) an interim ban (the original
ban) on product related services of a particular kind (the banned
services) is imposed by a responsible Minister other than the
Commonwealth Minister; and
(b) while the original ban is in
force, the Commonwealth Minister imposes an interim ban (the Commonwealth
ban):
(i) on the banned
services; or
(ii) on product related
services of a kind that includes the banned services;
the original ban, to the extent that it is a ban on the
banned services, ceases to be in force immediately before the Commonwealth ban
comes into force.
113
Revocation of interim bans
If a responsible Minister imposes an
interim ban:
(a) the responsible Minister may, by
written notice published on the internet, revoke the ban at any time; and
(b) the ban ceases to be in force on
the day specified by the responsible Minister in the notice.
Subdivision B—Permanent bans
114
Permanent bans on consumer goods or product related services
(1) The Commonwealth Minister may, by written
notice published on the internet, impose a permanent ban on
consumer goods of a particular kind if:
(a) one or more interim bans on
consumer goods of that kind (the banned goods), or on consumer
goods of a kind that include the banned goods, are in force; or
(b) it appears to the Commonwealth Minister
that:
(i) consumer goods of that
kind will or may cause injury to any person; or
(ii) a reasonably
foreseeable use (including a misuse) of consumer goods of that kind will or may
cause injury to any person.
(2) The Commonwealth Minister may, by written
notice published on the internet, impose a permanent ban on
product related services of a particular kind if:
(a) one or more interim bans on
product related services of that kind (the banned services), or
on product related services of a kind that include the banned services, are in
force; or
(b) it appears to the Commonwealth Minister
that:
(i) as a result of
services of that kind being supplied, consumer goods of a particular kind will
or may cause injury to any person; or
(ii) a reasonably
foreseeable use (including a misuse) of consumer goods of a particular kind, to
which such services relate, will or may cause injury to any person as a result
of such services being supplied.
115
Places in which permanent bans apply
A permanent ban applies in all States
and Territories.
116
When permanent bans come into force
A permanent ban comes into force on the
day specified by the Commonwealth Minister in the instrument imposing the ban.
117
Revocation of permanent bans
If the Commonwealth Minister imposes a
permanent ban:
(a) the Commonwealth Minister may, by
written notice published on the internet, revoke the ban at any time; and
(b) the ban ceases to be in force on
the day specified by the Commonwealth Minister in the notice.
Subdivision C—Compliance with interim bans and permanent bans
118
Supplying etc. consumer goods covered by a ban
(1) A person must not, in trade or commerce,
supply consumer goods of a particular kind if:
(a) an interim ban on consumer goods
of that kind is in force in the place where the supply occurs; or
(b) a permanent ban on consumer goods
of that kind is in force.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person must not, in trade or commerce,
offer for supply (other than for export) consumer goods the supply of which is
prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) A person must not, in or for the purposes
of trade or commerce, manufacture, possess or have control of consumer goods
the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(4) In a proceeding under Part 5‑2
in relation to a contravention of subsection (3), it is a defence if the
defendant proves that the defendant’s manufacture, possession or control of the
goods was not for the purpose of supplying the goods (other than for export).
(5) A person must not, in trade or commerce,
export consumer goods the supply of which is prohibited by subsection (1)
unless:
(a) the person applies, in writing, to
the Commonwealth Minister for an approval to export those goods; and
(b) the Commonwealth Minister gives
such an approval by written notice given to the person.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(6) If the Commonwealth Minister gives an
approval under subsection (5), he or she must cause a statement setting
out particulars of the approval to be tabled in each House of the Parliament of
the Commonwealth within 7 sitting days of that House after the approval is
given.
(7) If:
(a) a person supplies consumer goods
in contravention of subsection (1); and
(b) another person suffers loss or
damage:
(i) because of a defect
in, or a dangerous characteristic of, the goods; or
(ii) because of a
reasonably foreseeable use (including a misuse) of the goods;
the other person is taken, for the purposes of this
Schedule, to have suffered the loss or damage because of that supply.
119
Supplying etc. product related services covered by a ban
(1) A person must not, in trade or commerce,
supply product related services of a particular kind if:
(a) an interim ban on services of that
kind is in force in the place where the supply occurs; or
(b) a permanent ban on services of
that kind is in force.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person must not, in trade or commerce,
offer for supply product related services the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) If:
(a) a person supplies product related
services in contravention of subsection (1); and
(b) another person suffers loss or
damage:
(i) because of a defect
in, or a dangerous characteristic of, consumer goods that results from the
services being supplied; or
(ii) because of a
reasonably foreseeable use (including a misuse) of consumer goods that results
from the services being supplied;
the other person is taken, for the purposes of this
Schedule, to have suffered the loss or damage because of that supply.
Subdivision D—Temporary exemption from mutual recognition principles
120
Temporary exemption under the Trans‑Tasman Mutual Recognition Act 1997
(1) If:
(a) an interim ban on consumer goods
of a particular kind is in force; or
(b) a permanent ban on consumer goods
of a particular kind is in force;
the goods are taken, for the purposes of section 46
of the Trans‑Tasman Mutual Recognition Act 1997, to be goods of a
kind that are declared, in the manner provided by section 46(2) of that
Act, to be exempt from the operation of that Act.
(2) This section does not affect the
application of section 46(4) of that Act in relation to such an exemption.
121
Temporary exemption under the Mutual Recognition Act 1992
(1) If:
(a) an interim ban on consumer goods
of a particular kind is in force; and
(b) the interim ban was not imposed by
the Commonwealth Minister;
the goods are taken, for the purposes of section 15
of the Mutual Recognition Act 1992, to be goods of a kind that are
declared, in the manner provided by section 15(1) of that Act, to be goods
to which that section applies.
(2) This section does not affect the
application of section 15(3) of that Act in relation to such an exemption.
Division 3—Recall of consumer
goods
Subdivision A—Compulsory recall of consumer goods
122
Compulsory recall of consumer goods
(1) A responsible Minister may, by written
notice published on the internet, issue a recall notice for
consumer goods of a particular kind if:
(a) a person, in trade or commerce,
supplies consumer goods of that kind; and
(b) any of the following applies:
(i) it appears to the
responsible Minister that such goods will or may cause injury to any person;
(ii) it appears to the
responsible Minister that a reasonably foreseeable use (including a misuse) of
such goods will or may cause injury to any person;
(iii) a safety standard for
such goods is in force and the goods do not comply with the standard;
(iv) an interim ban, or a
permanent ban, on such goods is in force; and
(c) it appears to the responsible
Minister that one or more suppliers of such goods have not taken satisfactory
action to prevent those goods causing injury to any person.
(2) It is not necessary for the purposes of subsection (1)(c)
for the responsible Minister to know the identities of any of the suppliers of
the consumer goods of that kind.
(3) A recall notice for consumer goods may be
issued under subsection (1) even if the consumer goods have become
fixtures since the time they were supplied.
123
Contents of a recall notice
(1) A recall notice for the consumer goods
may require one or more suppliers of the goods, or (if no such supplier is
known to the responsible Minister who issued the notice) the regulator, to take
one or more of the following actions:
(a) recall the goods;
(b) disclose to the public, or to a
class of persons specified in the notice, one or more of the following:
(i) the nature of a defect
in, or a dangerous characteristic of, the goods as identified in the notice;
(ii) the circumstances as
identified in the notice in which a reasonably foreseeable use or misuse of the
goods is dangerous;
(iii) procedures as
specified in the notice for disposing of the goods;
(c) if the identities of any of those
suppliers are known to the responsible Minister—inform the public, or a class
of persons specified in the notice, that the supplier undertakes to do
whichever of the following the supplier thinks is appropriate:
(i) unless the notice
identifies a dangerous characteristic of the goods—repair the goods;
(ii) replace the goods;
(iii) refund
to a person to whom the goods were supplied (whether by the supplier or by
another person) the price of the goods.
(2) The recall notice may specify:
(a) the manner in which the action
required to be taken by the notice must be taken; and
(b) the period within which the action
must be taken.
(3) If the recall notice requires the
regulator to take action to recall the consumer goods, the responsible Minister
may specify in the notice that the regulator must retain, destroy or otherwise
dispose of the goods.
(4) If the recall notice requires a supplier
of the consumer goods to take action of a kind referred to in subsection (1)(c),
the responsible Minister may specify in the notice that, if:
(a) the supplier undertakes to refund
the price of the goods; and
(b) a
period of more than 12 months has elapsed since a person (whether or not the
person to whom the refund is to be made) acquired the goods from the supplier;
the amount of a refund may be reduced by the supplier by
an amount calculated in a manner specified in the notice that is attributable
to the use which a person has had of the goods.
124
Obligations of a supplier in relation to a recall notice
(1) This section applies if a recall notice
for consumer goods requires a supplier to take action of a kind referred to in
section 123(1)(c).
(2) If the supplier undertakes to repair the
consumer goods, the supplier must cause the goods to be repaired so that:
(a) any defect in the goods identified
in the recall notice is remedied; and
(b) if a safety standard for the goods
is in force—the goods comply with that standard.
(3) If the supplier undertakes to replace the
consumer goods, the supplier must replace the goods with similar consumer goods
which:
(a) if a defect in, or a dangerous
characteristic of, the goods to be replaced was identified in the recall
notice—do not contain that defect or have that characteristic; and
(b) if a safety standard for the goods
to be replaced is in force—comply with that standard.
(4) If the supplier undertakes:
(a) to repair the consumer goods; or
(b) to replace the consumer goods;
the cost of the repair or replacement, including any
necessary transportation costs, must be paid by the supplier.
125
Notification by persons who supply consumer goods outside Australia if there is
compulsory recall
(1) If consumer goods of a particular kind
are recalled as required by a recall notice, a person who has supplied or
supplies those consumer goods to a person outside Australia must give the
person outside Australia a written notice that complies with subsection (2).
(2) The notice given under subsection (1)
must:
(a) state that the consumer goods are
subject to recall; and
(b) if the consumer goods contain a
defect or have a dangerous characteristic—set out the nature of that defect or
characteristic; and
(c) if a reasonably foreseeable use or
misuse of the consumer goods is dangerous—set out the circumstances of that use
or misuse; and
(d) if the consumer goods do not
comply with a safety standard for such goods that is in force—set out the
nature of the non‑compliance; and
(e) if an interim ban, or a permanent
ban, on the consumer goods is in force—state that fact.
(3) The notice under subsection (1) must
be given as soon as practicable after the supply of the consumer goods to the
person outside Australia.
(4) A person who is required to give a notice
under subsection (1) must, within 10 days after giving the notice, give a
copy of the notice to the responsible Minister who issued the recall notice.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
126
Interaction of multiple recall notices
If:
(a) a recall notice (the original
recall notice) for consumer goods of a particular kind (the recalled
goods) is issued by a responsible Minister other than the Commonwealth
Minister; and
(b) while the original recall notice
is in force, the Commonwealth Minister issues a recall notice (the Commonwealth
recall notice):
(i) for the recalled
goods; or
(ii) for consumer goods of
a kind that includes the recalled goods;
the original recall notice, to the extent that it relates
to the recalled goods, ceases to be in force immediately before the
Commonwealth recall notice is issued.
127
Compliance with recall notices
(1) If:
(a) a recall notice for consumer goods
is in force; and
(b) the notice requires a person
(other than the regulator) to do one or more things;
the person must comply with the notice.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) If a recall notice for consumer goods is
in force, a person must not, in trade or commerce:
(a) if the notice identifies a defect
in, or a dangerous characteristic of, the consumer goods—supply consumer goods
of the kind to which the notice relates which contain that defect or have that
characteristic; or
(b) in any other case—supply consumer
goods of the kind to which the notice relates.
Note: A pecuniary penalty may be imposed for a contravention
of this subsection.
(3) If:
(a) a person contravenes subsection (1)
or (2) in relation to consumer goods; and
(b) another person suffers loss or
damage:
(i) because of a defect
in, or a dangerous characteristic of, the goods; or
(ii) because of a
reasonably foreseeable use (including a misuse) of the goods; or
(iii) because, contrary to
the recall notice, the other person was not provided with particular
information in relation to the goods;
the other person is taken, for the purposes of this
Schedule, to have suffered the loss or damage because of the contravention.
Subdivision B—Voluntary recall of consumer goods
128
Notification requirements for a voluntary recall of consumer goods
(1) This section applies if a person
voluntarily takes action to recall consumer goods of a particular kind
(including consumer goods that have become fixtures since being supplied)
because:
(a) the consumer goods will or may
cause injury to any other person; or
(b) a reasonably foreseeable use
(including a misuse) of the consumer goods will or may cause injury to any
other person; or
(c) a safety standard for the consumer
goods is in force and they do not, or it is likely that they do not, comply
with the standard; or
(d) an interim ban, or a permanent
ban, on the consumer goods is in force.
(2) The person must, within 2 days after
taking the action, give the Commonwealth Minister a written notice that
complies with subsection (7).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) The Commonwealth Minister may publish a
copy of the notice on the internet.
(4) A person who has supplied or supplies
consumer goods of that kind to another person outside Australia must give the
other person a written notice that complies with subsection (7).
(5) The notice under subsection (4) must
be given as soon as practicable after the supply of the consumer goods to the
person outside Australia.
(6) A person who is required to give a notice
under subsection (4) must, within 10 days after giving the notice, give a
copy of the notice to the Commonwealth Minister.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(7) A notice given under subsection (2)
or (4) must:
(a) state that the consumer goods are
subject to recall; and
(b) if the consumer goods contain a
defect or have a dangerous characteristic—set out the nature of that defect or
characteristic; and
(c) if a reasonably foreseeable use or
misuse of the consumer goods is dangerous—set out the circumstances of that use
or misuse; and
(d) if the consumer goods do not, or
it is likely that they do not, comply with a safety standard for the goods that
is in force—set out the nature of the non‑compliance or likely non‑compliance;
and
(e) if an interim ban, or a permanent
ban, on the consumer goods is in force—state that fact.
Division 4—Safety warning
notices
129
Safety warning notices about consumer goods and product related services
(1) A responsible Minister may publish on the
internet a written notice containing one or both of the following:
(a) a statement that consumer goods of
a kind specified in the notice are under investigation to determine whether:
(i) those goods will or
may cause injury to any person; or
(ii) a reasonably
foreseeable use (including a misuse) of those goods will or may cause injury to
any person;
(b) a warning of possible risks
involved in the use of consumer goods of a kind specified in the notice.
(2) A responsible Minister may publish on the
internet a written notice containing one or both of the following:
(a) a statement that product related
services of a kind specified in the notice are under investigation to determine
whether:
(i) consumer goods of a
particular kind will or may cause injury to any person as a result of services
of that kind being supplied; or
(ii) a reasonably
foreseeable use (including a misuse) of consumer goods of a particular kind, to
which such services relate, will or may cause injury to any person as a result
of such services being supplied;
(b) a warning of possible risks
involved in the supply of product related services of a kind specified in the
notice.
130
Announcement of the results of an investigation etc.
(1) If:
(a) an investigation of consumer
goods, or product related services, specified in a notice under section 129(1)
or (2) has been completed; and
(b) none
of the following have been published or issued in relation to those goods or
services:
(i) a proposed ban notice
under section 132 of the Competition and Consumer Act;
(ii) a proposed recall
notice under section 132A of that Act;
(iii) a notice under section 132J(1)
or (2) of that Act;
the responsible Minister who issued the notice under
section 129(1) or (2) must, as soon as practicable after the completion of
the investigation, announce, by written notice published on the internet, the
results of the investigation.
(2) The responsible Minister may announce in
a notice published under subsection (1) of this section:
(a) whether any action under this Part
is proposed to be taken in relation to the consumer goods or product related
services; and
(b) if it is proposed to take any such
action—what action is proposed to be taken.
Division 5—Consumer goods, or
product related services, associated with death or serious injury or illness
131
Suppliers to report consumer goods associated with the death or serious injury
or illness of any person
(1) If:
(a) a person (the supplier),
in trade or commerce, supplies consumer goods; and
(b) the supplier becomes aware of the
death or serious injury or illness of any person and:
(i) considers that the
death or serious injury or illness was caused, or may have been caused, by the
use or foreseeable misuse of the consumer goods; or
(ii) becomes aware that a
person other than the supplier considers that the death or serious injury or
illness was caused, or may have been caused, by the use or foreseeable misuse
of the consumer goods;
the supplier must, within 2 days of becoming so aware,
give the Commonwealth Minister a written notice that complies with subsection (5).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) Subsection (1) does not apply if:
(a) it is clear that the death or
serious injury or illness was not caused by the use or foreseeable misuse of
the consumer goods; or
(b) it is very unlikely that the death
or serious injury or illness was caused by the use or foreseeable misuse of the
consumer goods; or
(c) the supplier, or another person, is required to notify the death
or serious injury or illness in accordance with a law of the Commonwealth, a
State or a Territory that is a law specified in the regulations; or
(d) the supplier, or another person, is required to notify the death
or serious injury or illness in accordance with an industry code of practice
that:
(i) applies to the
supplier or other person; and
(ii) is specified in the
regulations.
(3) Subsection (1) applies whether or
not the consumer goods were being used before or at the time the death or
serious injury or illness occurred.
(4) Without limiting subsection (1), the
ways in which the supplier may become aware as mentioned in subsection (1)(b)
include receiving the relevant information from any of the following:
(a) a consumer;
(b) a person who re‑supplies the
consumer goods;
(c) a repairer or insurer of the
goods;
(d) an industry organisation or
consumer organisation.
(5) The notice must:
(a) identify the consumer goods; and
(b) include information about the
following matters to the extent that it is known by the supplier at the time
the notice is given:
(i) when, and in what
quantities, the consumer goods were manufactured in Australia, supplied in
Australia, imported into Australia or exported from Australia;
(ii) the circumstances in
which the death or serious injury or illness occurred;
(iii) the nature of any
serious injury or illness suffered by any person;
(iv) any action that the
supplier has taken, or is intending to take, in relation to the consumer goods.
(6) The giving of the notice under subsection (1)
is not to be taken for any purpose to be an admission by the supplier of any
liability in relation to:
(a) the consumer goods; or
(b) the death or serious injury or
illness of any person.
132
Suppliers to report product related services associated with the death or
serious injury or illness of any person
(1) If:
(a) a person (the supplier),
in trade or commerce, supplies product related services; and
(b) the supplier becomes aware of the
death or serious injury or illness of any person and:
(i) considers that the
death or serious injury or illness was caused, or may have been caused, by the
use or foreseeable misuse of the consumer goods to which the services relate;
or
(ii) becomes aware that a
person other than the supplier considers that the death or serious injury or
illness was caused, or may have been caused, by the use or foreseeable misuse
of the consumer goods to which the services relate;
the supplier must, within 2 days of becoming so aware,
give the Commonwealth Minister a written notice that complies with subsection (5).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) Subsection (1) does not apply if:
(a) it is clear that the death or
serious injury or illness was not caused by the use or foreseeable misuse of
the consumer goods to which the services relate; or
(b) it is very unlikely that the death
or serious injury or illness was caused by the use or foreseeable misuse of the
consumer goods to which the services relate; or
(c) the supplier, or another person, is required to notify the death
or serious injury or illness in accordance with a law of the Commonwealth, a
State or a Territory that is a law specified in the regulations; or
(d) the supplier, or another person, has notified the death or
serious injury or illness in accordance with an industry code of practice that:
(i) applies to the
supplier or other person; and
(ii) is specified in the
regulations.
(3) Subsection (1) applies whether or
not consumer goods to which the product related services relate were being used
before or at the time the death or serious injury or illness occurred.
(4) Without limiting subsection (1), the
ways in which the supplier may become aware as mentioned in subsection (1)(b)
include receiving the relevant information from any of the following:
(a) a consumer;
(b) a person who re‑supplies the
product related services;
(c) an insurer of the services;
(d) an industry organisation or
consumer organisation.
(5) The notice must:
(a) identify the product related
services and the consumer goods to which the services relate; and
(b) include information about the
following matters to the extent that it is known by the supplier at the time
the notice is given:
(i) when the services have
been supplied;
(ii) the circumstances in
which the death or serious injury or illness occurred;
(iii) the nature of any
serious injury or illness suffered by any person;
(iv) any action that the
supplier has taken, or is intending to take, in relation to the services.
(6) The giving of the notice under subsection (1)
is not to be taken for any purpose to be an admission by the supplier of any
liability in relation to:
(a) the product related services; or
(b) the consumer goods to which the
services relate; or
(c) the death or serious injury or
illness of any person.
132A
Confidentiality of notices given under this Division
(1) A person must not disclose to any other
person a notice given under this Division, or any part of or information
contained in such a notice, unless the person who gave the notice has consented
to the notice, or that part or information, not being treated as confidential.
(2) This section does not apply if:
(a) the disclosure is made by the
Commonwealth Minister to:
(i) another responsible
Minister; or
(ii) the regulator; or
(iii) an associate
regulator; or
(b) the disclosure is made by the
Commonwealth Minister and the Commonwealth Minister considers that the
disclosure is in the public interest; or
(c) the disclosure is made by a member
of the staff of the regulator, or an associate regulator, in the performance of
his or her duties as such a member of staff, and is made:
(i) to another member of
the staff of the regulator or associate regulator; or
(ii) if the person making
the disclosure is a member of the staff of the regulator—to an associate
regulator; or
(iii) if the person making
the disclosure is a member of the staff of an associate regulator—to the
regulator or another associate regulator; or
(d) the disclosure is required or authorised
by or under law; or
(e) the disclosure is reasonably
necessary for the enforcement of the criminal law or of a law imposing a
pecuniary penalty.
Division 6—Miscellaneous
133
Liability under a contract of insurance
If:
(a) a contract of insurance between an
insurer and a person relates to:
(i) the recall of consumer
goods that are supplied by the person, or which the person proposes to supply;
or
(ii) the liability of the
person with respect to possible defects in such consumer goods; and
(b) the person gives information
relating to any such consumer goods to:
(i) a responsible
Minister; or
(ii) the regulator; or
(iii) a person appointed or
engaged under the Public Service Act 1999, or under a corresponding law
of a State or a Territory; or
(iv) an officer of an
authority of the Commonwealth or of a State or Territory;
the liability of the insurer under the contract is not
affected only because the person gave the information.
Part 3‑4—Information
standards
134
Making information standards for goods and services
(1) The Commonwealth Minister may, by written
notice published on the internet, make an information standard
for one or both of the following:
(a) goods of a particular kind;
(b) services of a particular kind.
(2) Without limiting subsection (1), an
information standard for goods or services of a particular kind may:
(a) make provision in relation to the
content of information about goods or services of that kind; or
(b) require the provision of specified
information about goods or services of that kind; or
(c) provide for the manner or form in
which such information is to be provided; or
(d) provide that such information is
not to be provided in a specified manner or form; or
(e) provide that information of a specified
kind is not to be provided about goods or services of that kind; or
(f) assign a meaning to specified
information about goods or services.
135
Declaring information standards for goods and services
(1) The Commonwealth Minister may, by written
notice published on the internet, declare that the following is an information
standard for goods or services of a kind specified in the instrument:
(a) a particular standard, or a
particular part of a standard, prepared or approved by Standards Australia International
Limited or by an association prescribed by the regulations;
(b) such a standard, or such a part of
a standard, with additions or variations specified in the notice.
(2) The Commonwealth Minister must not
declare under subsection (1) that a standard, or a part of a standard,
referred to in that subsection is an information standard for:
(a) goods of a particular kind; or
(b) services of a particular kind;
if that standard or part is inconsistent with an
information standard for those goods or services that is in force and was made
under section 134(1).
136
Supplying etc. goods that do not comply with information standards
(1) A person must not, in trade or commerce,
supply goods of a particular kind if:
(a) an information standard for goods
of that kind is in force; and
(b) the person has not complied with
that standard.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person must not, in trade or commerce,
offer for supply goods the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) A person must not, in or for the purposes
of trade or commerce, manufacture, possess or have control of goods the supply
of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(4) In a proceeding under Part 5‑2
in relation to a contravention of subsection (3), it is a defence if the
defendant proves that the defendant’s manufacture, possession or control of the
goods was not for the purpose of supplying the goods.
(5) Subsections (1), (2) and (3) do not
apply to goods that are intended to be used outside Australia.
(6) Unless the contrary is established, it is
presumed, for the purposes of this section, that goods are intended to be used
outside Australia if either of the following is applied to the goods:
(a) a statement that the goods are for
export only;
(b) a
statement indicating, by the use of words authorised by the regulations to be
used for the purposes of this subsection, that the goods are intended to be
used outside Australia.
(7) Without limiting subsection (6), a
statement may, for the purposes of that subsection, be applied to goods by
being:
(a) woven in, impressed on, worked
into or annexed or affixed to the goods; or
(b) applied to a covering, label, reel
or thing in or with which the goods are supplied.
(8) If:
(a) a person (the supplier)
supplies goods in contravention of subsection (1), (2) or (3); and
(b) another person suffers loss or
damage because, contrary to the information standard, he or she was not
provided with particular information in relation to the goods; and
(c) the other person would not have
suffered the loss or damage if the supplier had complied with the information
standard;
the other person is taken, for the purposes of this
Schedule, to have suffered the loss or damage because of that supply.
137
Supplying etc. services that do not comply with information standards
(1) A person must not, in trade or commerce,
supply services of a particular kind if:
(a) an information standard for
services of that kind is in force; and
(b) the person has not complied with
that standard.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) A person must not, in trade or commerce,
offer for supply services the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(3) If:
(a) a person (the supplier)
supplies services in contravention of subsection (1) or (2); and
(b) another person suffers loss or
damage because, contrary to the information standard, he or she was not
provided with particular information in relation to the services; and
(c) the other person would not have
suffered the loss or damage if the supplier had complied with the information
standard;
the other person is taken, for the purposes of this
Schedule, to have suffered the loss or damage because of that supply.
Part 3‑5—Liability of
manufacturers for goods with safety defects
Division 1—Actions against
manufacturers for goods with safety defects
138
Liability for loss or damage suffered by an injured individual
(1) A manufacturer of goods is liable to
compensate an individual if:
(a) the manufacturer supplies the
goods in trade or commerce; and
(b) the goods have a safety defect;
and
(c) the individual suffers injuries
because of the safety defect.
(2) The individual may recover, by action
against the manufacturer, the amount of the loss or damage suffered by the
individual.
(3) If the individual dies because of the
injuries, a law of a State or a Territory about liability in respect of the
death of individuals applies as if:
(a) the action were an action under the
law of the State or Territory for damages in respect of the injuries; and
(b) the safety defect were the
manufacturer’s wrongful act, neglect or default.
139
Liability for loss or damage suffered by a person other than an injured
individual
(1) A manufacturer of goods is liable to
compensate a person if:
(a) the manufacturer supplies the
goods in trade or commerce; and
(b) the goods have a safety defect;
and
(c) an individual (other than the
person) suffers injuries because of the safety defect; and
(d) the person suffers loss or damage
because of:
(i) the injuries; or
(ii) if the individual dies
because of the injuries—the individual’s death; and
(e) the
loss or damage does not come about because of a business or professional
relationship between the person and the individual.
(2) The person may recover, by action against
the manufacturer, the amount of the loss or damage suffered by the person.
140
Liability for loss or damage suffered by a person if other goods are destroyed
or damaged
(1) A manufacturer of goods is liable to
compensate a person if:
(a) the manufacturer supplies the
goods in trade or commerce; and
(b) the goods have a safety defect;
and
(c) other goods of a kind ordinarily
acquired for personal, domestic or household use or consumption are destroyed
or damaged because of the safety defect; and
(d) the person used or consumed, or
intended to use or consume, the destroyed or damaged goods for personal,
domestic or household use or consumption; and
(e) the person suffers loss or damage
as a result of the destruction or damage.
(2) The person may recover, by action against
the manufacturer, the amount of the loss or damage suffered by the person.
141
Liability for loss or damage suffered by a person if land, buildings or fixtures
are destroyed or damaged
(1) A manufacturer of goods is liable to
compensate a person if:
(a) the manufacturer supplies the
goods in trade or commerce; and
(b) the goods have a safety defect;
and
(c) land, buildings or fixtures are
destroyed or damaged because of the safety defect; and
(d) the land, buildings or fixtures
are ordinarily acquired for private use; and
(e) the person used, or intended to
use, the land, buildings or fixtures for private use; and
(f) the person suffers loss or damage
as a result of the destruction or damage.
(2) The person may recover, by action against
the manufacturer, the amount of the loss or damage suffered by the person.
142
Defences to defective goods actions
In a defective goods action, it is a
defence if it is established that:
(a) the safety defect in the goods
that is alleged to have caused the loss or damage did not exist:
(i) in the case of
electricity—at the time at which the electricity was generated, being a time
before it was transmitted or distributed; or
(ii) in any other case—at
the time when the goods were supplied by their actual manufacturer; or
(b) the goods had that safety defect
only because there was compliance with a mandatory standard for them; or
(c) the state of scientific or technical
knowledge at the time when the goods were supplied by their manufacturer was
not such as to enable that safety defect to be discovered; or
(d) if the goods that had that safety
defect were comprised in other goods—that safety defect is attributable only
to:
(i) the design of the
other goods; or
(ii) the markings on or
accompanying the other goods; or
(iii) the instructions or
warnings given by the manufacturer of the other goods.
Division 2—Defective goods
actions
143
Time for commencing defective goods actions
(1) Subject to subsection (2), a person
may commence a defective goods action at any time within 3 years after the time
the person became aware, or ought reasonably to have become aware, of all of
the following:
(a) the alleged loss or damage;
(b) the safety defect of the goods;
(c) the identity of the person who
manufactured the goods.
(2) A defective goods action must be
commenced within 10 years of the supply by the manufacturer of the goods to
which the action relates.
144
Liability joint and several
If 2 or more persons are liable under
Division 1 for the same loss or damage, they are jointly and severally
liable.
145
Survival of actions
A law of a State or a Territory about
the survival of causes of action vested in persons who die applies to actions
under Division 1.
146 No
defective goods action where workers’ compensation law etc. applies
Division 1 does not apply to a loss
or damage in respect of which an amount has been, or could be, recovered under
a law of the Commonwealth, a State or a Territory that:
(a) relates to workers’ compensation;
or
(b) gives effect to an international
agreement.
147
Unidentified manufacturer
(1) A person who:
(a) wishes to institute a defective
goods action; but
(b) does not know who is the
manufacturer of the goods to which the action would relate;
may, by written notice given to a supplier, or each
supplier, of the goods who is known to the person, request the supplier or
suppliers to give the person particulars identifying the manufacturer of the
goods, or the supplier of the goods to the supplier requested.
(2) If, 30 days after the person made the
request or requests, the person still does not know who is the manufacturer of
the goods, then each supplier:
(a) to whom the request was made; and
(b) who
did not comply with the request;
is taken, for the purposes of the defective goods
liability action (but not for the purposes of section 142(c)), to be the
manufacturer of the goods.
148
Commonwealth liability for goods that are defective only because of compliance
with Commonwealth mandatory standard
(1) If a person (however described) against
whom a defective goods action is brought raises the defence that the goods had
the alleged safety defect only because there was compliance with a Commonwealth
mandatory standard for the goods, the person must, as soon as practicable after
raising that defence, give the Commonwealth:
(a) a prescribed notice of the action
and of that defence; and
(b) a copy of the person’s defence in
the action.
(2) The giving of the notice and defence
makes the Commonwealth a defendant in the action.
(3) If, in the action, the court finds that
the person (the plaintiff) by whom the action is brought would,
but for the defence referred to in subsection (1), have succeeded against
the person (other than the Commonwealth) against which the action is brought,
then:
(a) the Commonwealth, and not the
person (other than the Commonwealth) against which the action is brought, is
liable to pay the plaintiff for the amount of the loss or damage caused by the
safety defect; and
(b) the court is to enter judgment
against the Commonwealth for that amount; and
(c) the court may make such orders for
costs as the court considers just.
149
Representative actions by the regulator
(1) The regulator may, by application,
commence a defective goods action on behalf of one or more persons identified
in the application who have suffered the loss or damage in relation to which
the action is commenced.
(2) The regulator may only make the
application if it has obtained the written consent of the person, or each of
the persons, on whose behalf the application is being made.
Division 3—Miscellaneous
150
Application of all or any provisions of this Part etc. not to be excluded or
modified
(1) Any term of a contract (including a term
that is not set out in the contract but is incorporated in the contract by
another term) that purports to exclude, restrict or modify, or has the effect
of excluding, restricting or modifying, any of the following is void:
(a) the application of all or any of
the provisions of this Part;
(b) the exercise of a right conferred
by any of those provisions;
(c) any
liability under any of those provisions.
(2) A term of a contract is not taken to
exclude, restrict or modify the application of a provision of this Part unless
the term does so expressly or is inconsistent with that provision.
Chapter 4—Offences
Part 4‑1—Offences relating
to unfair practices
Division 1—False or misleading
representations etc.
151
False or misleading representations about goods or services
(1) A person commits an offence if the
person, in trade or commerce, in connection with the supply or possible supply
of goods or services or in connection with the promotion by any means of the
supply or use of goods or services:
(a) makes a false or misleading
representation that goods are of a particular standard, quality, value, grade,
composition, style or model or have had a particular history or particular
previous use; or
(b) makes a false or misleading
representation that services are of a particular standard, quality, value or
grade; or
(c) makes a false or misleading
representation that goods are new; or
(d) makes a false or misleading
representation that a particular person has agreed to acquire goods or
services; or
(e) makes a false or misleading
representation that purports to be a testimonial by any person relating to
goods or services; or
(f) makes a false or misleading
representation concerning:
(i) a testimonial by any
person; or
(ii) a representation that
purports to be such a testimonial;
relating to goods or services;
or
(g) makes a false or misleading
representation that goods or services have sponsorship, approval, performance
characteristics, accessories, uses or benefits; or
(h) makes a false or misleading
representation that the person making the representation has a sponsorship,
approval or affiliation; or
(i) makes a false or misleading
representation with respect to the price of goods or services; or
(j) makes a false or misleading
representation concerning the availability of facilities for the repair of
goods or of spare parts for goods; or
(k) makes a false or misleading
representation concerning the place of origin of goods; or
(l) makes a false or misleading
representation concerning the need for any goods or services; or
(m) makes
a false or misleading representation concerning the existence, exclusion or
effect of any condition, warranty, guarantee, right or remedy (including a
guarantee under Division 1 of Part 3‑2); or
(n) makes
a false or misleading representation concerning a requirement to pay for a
contractual right that:
(i) is wholly or partly
equivalent to any condition, warranty, guarantee, right or remedy (including a
guarantee under Division 1 of Part 3‑2); and
(ii) a person has under a
law of the Commonwealth, a State or a Territory (other than an unwritten law).
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
Note: For rules relating to representations as to
the country of origin of goods, see Part 5‑3.
(2) For the purposes of applying subsection (1)
in relation to a proceeding concerning a representation of a kind referred to
in subsection (1)(e) or (f), the representation is taken to be misleading
unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does
not:
(a) have the effect that, merely
because such evidence to the contrary is adduced, the representation is not
misleading; or
(b) have the effect of placing on any
person an onus of proving that the representation is not misleading.
(4) Subsection (1) is an offence of
strict liability.
152
False or misleading representations about sale etc. of land
(1) A person commits an offence if the
person, in trade or commerce, in connection with the sale or grant, or the
possible sale or grant, of an interest in land or in connection with the
promotion by any means of the sale or grant of an interest in land:
(a) makes a false or misleading
representation that the person making the representation has a sponsorship,
approval or affiliation; or
(b) makes a false or misleading
representation concerning the nature of the interest in the land; or
(c) makes a false or misleading
representation concerning the price payable for the land; or
(d) makes a false or misleading
representation concerning the location of the land; or
(e) makes a false or misleading
representation concerning the characteristics of the land; or
(f) makes a false or misleading
representation concerning the use to which the land is capable of being put or
may lawfully be put; or
(g) makes a false or misleading
representation concerning the existence or availability of facilities
associated with the land.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) Subsection (1) is an offence of
strict liability.
(3) This section does not affect the
application of any other provision of this Part in relation to the supply or
acquisition, or the possible supply or acquisition, of interests in land.
153
Misleading conduct relating to employment
(1) A person commits an offence if the
person, in relation to employment that is to be, or may be, offered by the
person or by another person, engages in conduct that is liable to mislead
persons seeking the employment as to:
(a) the availability, nature, terms or
conditions of the employment; or
(b) any other matter relating to the
employment.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) Subsection (1) is an offence of
strict liability.
154
Offering rebates, gifts, prizes etc.
(1) A person commits an offence if:
(a) the person, in trade or commerce,
offers any rebate, gift, prize or other free item; and
(b) the offer is connected with:
(i) the supply or possible
supply of goods or services; or
(ii) the promotion by any
means of the supply or use of goods or services; or
(iii) the sale or grant, or
the possible sale or grant, of an interest in land; or
(iv) the promotion by any
means of the sale or grant of an interest in land; and
(c) the offer is made with the
intention of not providing the rebate, gift, prize or other free item, or of
not providing it as offered.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce,
offers any rebate, gift, prize or other free item; and
(b) the offer is connected with:
(i) the supply or possible
supply of goods or services; or
(ii) the promotion by any
means of the supply or use of goods or services; or
(iii) the sale or grant, or
the possible sale or grant, of an interest in land; or
(iv) the promotion by any
means of the sale or grant of an interest in land; and
(c) the person fails to provide the
rebate, gift, prize or other free item, in accordance with the offer, within
the time specified in the offer or (if no such time is specified) within a
reasonable time after making the offer.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) Subsection (2) does not apply if:
(a) the person’s failure to provide
the rebate, gift, prize or other free item in accordance with the offer was due
to the act or omission of another person, or to some other cause beyond the
person’s control; and
(b) the person took reasonable
precautions and exercised due diligence to avoid the failure.
(4) Subsection (2) does not apply to an
offer that the person makes to another person if:
(a) the person offers to the other
person a different rebate, gift, prize or other free item as a replacement; and
(b) the other person agrees to receive
the different rebate, gift, prize or other free item.
(5) Strict liability applies to subsections (1)(b)
and (2)(b).
(6) This section does not affect the
application of any other provision of this Part in relation to the supply or
acquisition, or the possible supply or acquisition, of interests in land.
155
Misleading conduct as to the nature etc. of goods
(1) A person commits an offence if the
person, in trade or commerce, engages in conduct that is liable to mislead the
public as to the nature, the manufacturing process, the characteristics, the
suitability for their purpose or the quantity of any goods.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) Subsection (1) is an offence of
strict liability.
156
Misleading conduct as to the nature etc. of services
(1) A person commits an offence if the
person, in trade or commerce, engages in conduct that is liable to mislead the
public as to the nature, the characteristics, the suitability for their purpose
or the quantity of any services.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) Subsection (1) is an offence of
strict liability.
157
Bait advertising
(1) A person commits an offence if:
(a) the person, in trade or commerce,
advertises goods or services for supply at a specified price; and
(b) there are reasonable grounds for
believing that the person will not be able to offer for supply those goods or
services at that price for a period that is, and in quantities that are,
reasonable, having regard to:
(i) the nature of the
market in which the person carries on business; and
(ii) the nature of the
advertisement.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce,
advertises goods or services for supply at a specified price; and
(b) the person fails to offer such
goods or services for supply at that price for a period that is, and in
quantities that are, reasonable having regard to:
(i) the nature of the
market in which the person carries on business; and
(ii) the nature of the
advertisement.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) Subsections (1) and (2) are offences
of strict liability.
(4) In a prosecution of a person (the defendant)
under subsection (2), for failing to offer goods or services to another
person (the customer), it is a defence if:
(a) the defendant proves that:
(i) he or she offered to
supply, or to procure a third person to supply, goods or services of the kind
advertised to the customer within a reasonable time, in a reasonable quantity
and at the advertised price; or
(ii) he or she offered to
supply immediately, or to procure a third person to supply within a reasonable
time, equivalent goods or services to the customer in a reasonable quantity and
at the price at which the first‑mentioned goods or services were
advertised; and
(b) in either case, if the offer was
accepted by the customer, the defendant proves that he or she has so supplied,
or procured a third person to supply, the goods or services.
158
Wrongly accepting payment
(1) A person commits an offence if:
(a) the person, in trade or commerce,
accepts payment or other consideration for goods or services; and
(b) at the time of the acceptance, the
person intends not to supply the goods or services.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) Strict liability applies to subsection (1)(a).
(3) A person commits an offence if:
(a) the person, in trade or commerce,
accepts payment or other consideration for goods or services; and
(b) at the time of the acceptance, the
person intends to supply goods or services materially different from the goods
or services in respect of which the payment or other consideration is accepted.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(4) Strict liability applies to subsection (3)(a).
(5) A person commits an offence if:
(a) the person, in trade or commerce,
accepts payment or other consideration for goods or services; and
(b) at the time of the acceptance, the
person was reckless as to whether he or she would be able to supply the goods
or services:
(i) within the period
specified by or on behalf of the person at or before the time the payment or
other consideration was accepted; or
(ii) if no period is
specified at or before that time—within a reasonable time.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(6) Strict liability applies to subsection (5)(a).
(7) A person commits an offence if:
(a) the person, in trade or commerce,
accepts payment or other consideration for goods or services; and
(b) the person fails to supply all the
goods or services:
(i) within the period
specified by or on behalf of the person at or before the time the payment or
other consideration was accepted; or
(ii) if no period is
specified at or before that time—within a reasonable time.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(8) Subsection (7) does not apply if:
(a) the person’s failure to supply all
the goods or services within the period, or within a reasonable time, was due
to the act or omission of another person, or to some other cause beyond the
person’s control; and
(b) the person took reasonable
precautions and exercised due diligence to avoid the failure.
(9) Subsection (7) does not apply if:
(a) the person offers to supply different
goods or services as a replacement to the person (the customer)
to whom the original supply was to be made; and
(b) the customer agrees to receive the
different goods or services.
(10) Subsection (7) is an offence of
strict liability.
(11) Subsections (1), (3), (5) and (7)
apply whether or not the payment or other consideration that the person
accepted represents the whole or a part of the payment or other consideration
for the supply of the goods or services.
159
Misleading representations about certain business activities
(1) A person commits an offence if:
(a) the person, in trade or commerce,
makes a representation; and
(b) the representation is false or
misleading in a material particular; and
(c) the representation concerns the
profitability, risk or any other material aspect of any business activity that
the person has represented as one that can be, or can be to a considerable
extent, carried on at or from a person’s place of residence.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce,
makes a representation; and
(b) the representation is false or
misleading in a material particular; and
(c) the representation concerns the
profitability, risk or any other material aspect of any business activity:
(i) that the person
invites (whether by advertisement or otherwise) other persons to engage or
participate in, or to offer or apply to engage or participate in; and
(ii) that requires the
performance of work by other persons, or the investment of money by other
persons and the performance by them of work associated with the investment.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) Subsections (1) and (2) are offences
of strict liability.
160
Application of provisions of this Division to information providers
(1) Sections 151, 152, 155, 156 and 159
do not apply to a publication of matter by an information provider if:
(a) in any case—the information
provider made the publication in the course of carrying on a business of
providing information; or
(b) if the information provider is the
Australian Broadcasting Corporation, the Special Broadcasting Service
Corporation or the holder of a licence granted under the Broadcasting
Services Act 1992—the publication was by way of a radio or television
broadcast by the information provider.
(2) Subsection (1) does not apply to a
publication of an advertisement.
(3) Subsection (1) does not apply to a
publication of matter in connection with the supply or possible supply of, or
the promotion by any means of the supply or use of, goods or services (the publicised
goods or services), if:
(a) the publicised goods or services
were goods or services of a kind supplied by the information provider or, if
the information provider is a body corporate, by a body corporate that is
related to the information provider; or
(b) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a person who
supplies goods or services of the same kind as the publicised goods or
services; or
(c) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a body
corporate that is related to a body corporate that supplies goods or services
of the same kind as the publicised goods or services.
(4) Subsection (1) does not apply to a
publication of matter in connection with the sale or grant, or possible sale or
grant, of, or the promotion by any means of the sale or grant of, interests in
land (the publicised interests in land), if:
(a) the publicised interests in land
were interests of a kind sold or granted by the information provider or, if the
information provider is a body corporate, by a body corporate that is related
to the information provider; or
(b) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a person who
sells or grants interests of the same kind as the publicised interests in land;
or
(c) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a body
corporate that is related to a body corporate that sells or grants interests of
the same kind as the publicised interests in land.
Division 2—Unsolicited supplies
161
Unsolicited cards etc.
(1) A person commits an offence if:
(a) the person sends a credit card or
a debit card, or an article that may be used as a credit card and a debit card,
to another person; and
(b) either:
(i) the person had issued
the card; or
(ii) the card was sent on
behalf of the person who had issued the card.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) Subsection (1) does not apply if the
person sends the card to the other person:
(a) pursuant to a written request by
the person who will be under a liability to the person who issued the card or
article in respect of the use of the card or article; or
(b) in renewal or replacement of, or
in substitution for:
(i) a card or article of
the same kind previously sent to the other person pursuant to a written request
by the person who was under a liability, to the person who issued the card
previously so sent, in respect of the use of that card; or
(ii) a card or article of
the same kind previously sent to the other person and used for a purpose for
which it was intended to be used.
(3) A person commits an offence if the person
takes any action that enables another person who has a credit card to use the
card as a debit card.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(4) A person commits an offence if the person
takes any action that enables another person who has a debit card to use the
card as a credit card.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(5) Subsection (3) or (4) does not apply
if the person takes the action in accordance with the other person’s written
request.
(6) Subsections (1), (3) and (4) are
offences of strict liability.
162
Assertion of right to payment for unsolicited goods or services
(1) A person commits an offence if the
person, in trade or commerce, asserts a right to payment from another person
for unsolicited goods.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if the
person, in trade or commerce, asserts a right to payment from another person
for unsolicited services.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) A person commits an offence if the
person, in trade or commerce, sends to another person an invoice or other
document that:
(a) states the amount of a payment, or
sets out the charge, for supplying unsolicited goods or unsolicited services;
and
(b) does not contain a warning
statement that complies with the requirements set out in the regulations made
for the purposes of section 40(3)(b).
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(4) Subsection (1), (2) or (3) does not
apply if the person proves that he or she had reasonable cause to believe that
there was a right to the payment or charge.
(5) Subsections (1), (2) and (3) are
offences of strict liability.
163
Assertion of right to payment for unauthorised entries or advertisements
(1) A person commits an offence if the person
asserts a right to payment from another person of a charge for placing, in a
publication, an entry or advertisement relating to:
(a) the other person; or
(b) the other person’s profession,
business, trade or occupation.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if the person
sends to another person an invoice or other document that:
(a) states the amount of a payment, or
sets out the charge, for placing, in a publication, an entry or advertisement
relating to:
(i) the other person; or
(ii) the other person’s
profession, business, trade or occupation; and
(b) does not contain a warning
statement that complies with the requirements set out in the regulations made
for the purposes of section 43(2)(b).
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) Subsections (1) and (2) do not apply
if the person proves that he or she knew, or had reasonable cause to believe,
that the other person authorised the placing of the entry or advertisement.
(4) Subsections (1) and (2) do not apply
to an entry or advertisement that is placed in a publication published by a
person who is:
(a) the publisher of a publication
that has an audited circulation of 10,000 copies or more per week, as confirmed
by the most recent audit of the publication by a body specified in the regulations
made for the purposes of section 43(3)(a); or
(b) a body corporate related to such a
publisher; or
(c) the Commonwealth, a State or a
Territory, or an authority of the Commonwealth, a State or a Territory; or
(d) a person specified in regulations
made for the purposes of section 43(3)(d).
(5) Subsections (1) and (2) are offences
of strict liability.
(6) A person is not taken for the purposes of
this section to have authorised the placing of the entry or advertisement,
unless:
(a) a document authorising the placing
of the entry or advertisement has been signed by the person or by another
person authorised by him or her; and
(b) a copy of the document has been
given to the person before the right to payment of a charge for the placing of
the entry or advertisement is asserted; and
(c) the document specifies:
(i) the name and address
of the person publishing the entry or advertisement; and
(ii) particulars of the
entry or advertisement; and
(iii) the amount of the
charge for the placing of the entry or advertisement, or the basis on which the
charge is, or is to be, calculated.
Division 3—Pyramid schemes
164
Participation in pyramid schemes
(1) A person commits an offence if the person
participates in a pyramid scheme.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if the person
induces another person to participate in a pyramid scheme.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) Subsections (1) and (2) are offences
of strict liability.
Division 4—Pricing
165
Multiple pricing
(1) A person commits an offence if:
(a) the person, in trade or commerce,
supplies goods; and
(b) the goods have more than one
displayed price; and
(c) the supply takes place for a price
that is not the lower, or lowest, of the displayed prices.
Penalty:
(a) if the person is a body
corporate—$5,000; or
(b) if the person is not a body corporate—$1,000.
(2) Subsection (1) is an offence of
strict liability.
166
Single price to be specified in certain circumstances
(1) A person commits an offence if the
person, in trade or commerce, in connection with:
(a) the supply, or possible supply, to
another person of goods or services of a kind ordinarily acquired for personal,
domestic or household use or consumption; or
(b) the promotion by any means of the
supply to another person, or of the use by another person, of goods or services
of a kind ordinarily acquired for personal, domestic or household use or
consumption;
makes a representation with respect to an amount that, if
paid, would constitute a part of the consideration for the supply of the goods
or services.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person is not required to include, in
the single price for goods, a charge that is payable in relation to sending the
goods from the supplier to the other person.
(3) Subsection (1) does not apply if the
person also:
(a) specifies, in a prominent way and
as a single figure, the single price for the goods or services; and
(b) if, in relation to goods:
(i) the person does not
include in the single price a charge that is payable in relation to sending the
goods from the supplier to the other person; and
(ii) the person knows, at
the time of the representation, the minimum amount of a charge in relation to
sending the goods from the supplier to the other person that must be paid by
the other person;
specifies that minimum amount.
(4) Subsection (1) does not apply if the
representation is made exclusively to a body corporate.
(5) For the purposes of subsection (3)(a),
the person is taken not to have specified a single price for the goods or
services in a prominent way unless the single price is at least as prominent as
the most prominent of the parts of the consideration for the supply.
(6) Subsection (5) does not apply in
relation to services to be supplied under a contract if:
(a) the contract provides for the
supply of the services for the term of the contract; and
(b) the contract provides for periodic
payments for the services to be made during the term of the contract; and
(c) if the contract also provides for
the supply of goods—the goods are directly related to the supply of the
services.
(7) Subsection (1) is an offence of
strict liability.
Division 5—Other unfair
practices
167
Referral selling
(1) A person commits an offence if:
(a) the person, in trade or commerce,
induces a consumer to acquire goods or services by representing that the
consumer will, after the contract for the acquisition of the goods or services
is made, receive a rebate, commission or other benefit in return for:
(i) giving the person the
names of prospective customers; or
(ii) otherwise assisting
the person to supply goods or services to other consumers; and
(b) the receipt of the rebate,
commission or other benefit is contingent on an event occurring after that
contract is made.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) Subsection (1) is an offence of
strict liability.
168
Harassment and coercion
(1) A person commits an offence if:
(a) the person uses physical force, or
undue harassment or coercion; and
(b) the physical force, or undue
harassment or coercion is used in connection with:
(i) the supply or possible
supply of goods or services; or
(ii) the payment for goods
or services; or
(iii) the sale or grant, or
the possible sale or grant, of an interest in land; or
(iv) the payment for an
interest in land.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) Subsection (1) is an offence of
strict liability.
(3) Subsections (1)(b)(iii) and (iv) do
not affect the application of any other provision of this Part in relation to
the supply or acquisition, or the possible supply or acquisition, of interests
in land.
Part 4‑2—Offences relating
to consumer transactions
Division 1—Consumer guarantees
169
Display notices
(1) A person commits an offence if:
(a) the person makes a supply to a
consumer to which:
(i) guarantees apply under
Division 1 of Part 3‑2; and
(ii) a determination under
subsection 66(1) applies; and
(b) a notice that meets the
requirements of the determination is not, in accordance with the determination:
(i) if the consumer takes
delivery of the goods or services at the supplier’s premises—displayed at those
premises; or
(ii) otherwise—drawn to the
consumer’s attention before the consumer agrees to the supply of the goods.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) Subsection (1) is an offence of
strict liability.
Division 2—Unsolicited consumer
agreements
Subdivision A—Negotiating unsolicited consumer agreements
170
Permitted hours for negotiating an unsolicited consumer agreement
(1) A dealer commits an offence if the dealer
calls on a person for the purpose of negotiating an unsolicited consumer
agreement, or for an incidental or related purpose:
(a) at any time on a Sunday or a
public holiday; or
(b) before 9 am on any other day; or
(c) after 6 pm on any other day (or
after 5 pm if the other day is a Saturday).
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) Subsection (1) does not apply if the
dealer calls on, or telephones, the person in accordance with consent that:
(a) was given by the person to the
dealer or a person acting on the dealer’s behalf; and
(b) was not given in the presence of
the dealer or a person acting on the dealer’s behalf.
(3) Subsection (1) is an offence of
strict liability.
171 Disclosing
purpose and identity
(1) A dealer commits an offence if the
dealer:
(a) calls on a person for the purpose
of negotiating an unsolicited consumer agreement, or for an incidental or
related purpose; and
(b) does not as soon as practicable
and in any event before starting to negotiate:
(i) clearly advise the
person that the dealer’s purpose is to seek the person’s agreement to a supply
of the goods or services concerned; and
(ii) clearly advise the
person that the dealer is obliged to leave the premises immediately on request;
and
(iii) provide to the person
such information relating to the dealer’s identity as is prescribed by the
regulations made for the purposes of section 74(c).
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) Subsection (1) is an offence of
strict liability.
172
Ceasing to negotiate on request
(1) A dealer commits an offence if the
dealer:
(a) calls on a person at any premises
for the purpose of negotiating an unsolicited consumer agreement, or for an
incidental or related purpose; and
(b) does not leave the premises
immediately on the request of:
(i) the occupier of the
premises, or any person acting with the actual or apparent authority of the
occupier; or
(ii) the person (the prospective
consumer) with whom the negotiations are being conducted.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) A dealer commits an offence if:
(a) the prospective consumer has made
the request referred to in subsection (1)(b); and
(b) the dealer contacts the
prospective consumer for the purpose of negotiating an unsolicited consumer
agreement (or for an incidental or related purpose) within 30 days after the
prospective consumer made the request.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(3) If the dealer is not, or is not to be,
the supplier of the goods or services to which the negotiations relate, subsection (2)
applies to that supplier, and any person acting on behalf of the supplier, in
the same way that it applies to the dealer.
(4) Subsection (2) does not apply to the
dealer contacting the prospective consumer if:
(a) the dealer is not, or is not to
be, the supplier of the goods or services to which the negotiations relate; and
(b) the contact relates to a supply by
another supplier.
(5) Subsections (1) and (2) are offences
of strict liability.
173
Informing person of termination period etc.
(1) A dealer commits an offence if the dealer
makes an unsolicited consumer agreement with a person, and:
(a) before the agreement is made, the
person is not given information as to the following:
(i) the person’s right to
terminate the agreement during the termination period;
(ii) the way in which the
person may exercise that right;
(iii) such other matters as
are prescribed by regulations made for the purposes of section 76(a)(iii);
or
(b) if the agreement is made in the
presence of both the dealer and the person—the person is not given the
information in writing; or
(c) if the agreement is made by
telephone—the person is not:
(i) given the information
by telephone; and
(ii) subsequently given the
information in writing; or
(d) the form in which, and the way in
which, the person is given the information does not comply with any other
requirements prescribed by regulations made for the purposes of section 76(d).
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) If:
(a) a dealer contravenes subsection (1)
in relation to an unsolicited consumer agreement; and
(b) the dealer is not, or is not to
be, the supplier of the goods or services to which the agreement relates;
the supplier of the goods or services is also taken to
have contravened subsection (1) in relation to the agreement.
(3) Subsection (1) is an offence of
strict liability.
Subdivision B—Requirements for unsolicited consumer agreements etc.
174
Requirement to give document to the consumer
(1) The dealer who negotiated an unsolicited
consumer agreement commits an offence if:
(a) the agreement was not negotiated
by telephone; and
(b) the dealer does not give a copy of
the agreement to the consumer under the agreement immediately after the
consumer signs the agreement.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) The dealer who negotiated an unsolicited
consumer agreement commits an offence if:
(a) the agreement was negotiated by
telephone; and
(b) the dealer does not, within 5
business days after the agreement was made or such longer period agreed by the
parties, give to the consumer under the agreement:
(i) personally; or
(ii) by post; or
(iii) with the consumer’s
consent—by electronic communication;
an agreement document evidencing
the agreement.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(3) Subsections (1) and (2) are offences
of strict liability.
175
Requirements for all unsolicited consumer agreements etc.
(1) The supplier under an unsolicited
consumer agreement commits an offence if the agreement, or (if the agreement
was negotiated by telephone) the agreement document, does not comply with the
following requirements:
(a) it must set out in full all the
terms of the agreement, including:
(i) the total
consideration to be paid or provided by the consumer under the agreement or, if
the total consideration is not ascertainable at the time the agreement is made,
the way in which it is to be calculated; and
(ii) any postal or delivery
charges to be paid by the consumer;
(b) its front page must include a
notice that:
(i) conspicuously and
prominently informs the consumer of the consumer’s right to terminate the
agreement; and
(ii) conspicuously and
prominently sets out any other information prescribed by regulations made for
the purposes of section 79(b)(ii); and
(iii) complies with any other
requirements prescribed by regulations made for the purposes of section 79(b)(iii);
(c) it must be accompanied by a notice
that:
(i) may be used by the
consumer to terminate the agreement; and
(ii) complies with any
requirements prescribed by regulations made for the purposes of section 79(c)(ii);
(d) it must conspicuously and
prominently set out in full:
(i) the supplier’s name;
and
(ii) if the supplier has an
ABN—the supplier’s ABN; and
(iii) if the supplier does
not have an ABN but has an ACN—the supplier’s ACN; and
(iv) the supplier’s business
address (not being a post box) or, if the supplier does not have a business
address, the supplier’s residential address; and
(v) if the supplier has an
email address—the supplier’s email address; and
(vi) if the supplier has a
fax number—the supplier’s fax number;
(e) it must be printed clearly or
typewritten (apart from any amendments to the printed or typewritten form,
which may be handwritten);
(f) it must be transparent.
Penalty:
(a) if the person is a body corporate—$50,000;
or
(b) if the person is not a body
corporate—$10,000.
(2) Subsection (1) is an offence of
strict liability.
176
Additional requirements for unsolicited consumer agreements not negotiated by
telephone
(1) The supplier under an unsolicited
consumer agreement that was not negotiated by telephone commits an offence if
the agreement does not comply with the following requirements:
(a) the agreement must be signed by
the consumer under the agreement;
(b) if the agreement is signed by a
person on the supplier’s behalf—the agreement must state that the person is
acting on the supplier’s behalf, and must set out in full:
(i) the person’s name; and
(ii) the person’s business
address (not being a post box) or, if the person does not have a business
address, the person’s residential address; and
(iii) if the person has an
email address—the person’s email address.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) Subsection (1) is an offence of
strict liability.
(3) This section does not limit the operation
of section 175.
177
Requirements for amendments of unsolicited consumer agreements
(1) The supplier under an unsolicited
consumer agreement commits an offence if any amendments to the agreement are
not signed by both parties to the agreement.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) Subsection (1) is an offence of
strict liability.
Subdivision C—Terminating unsolicited consumer agreements
178
Obligations of suppliers on termination
(1) The supplier under an unsolicited
consumer agreement commits an offence if:
(a) the agreement is terminated in
accordance with section 82; and
(b) the supplier does not, immediately
upon being notified of the termination, return or refund to the consumer under
the agreement any consideration (or the value of any consideration) that the
consumer gave under the agreement or a related contract or instrument.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) Subsection (1) is an offence of
strict liability.
179
Prohibition on supplies for 10 business days
(1) The supplier under an unsolicited
consumer agreement commits an offence if:
(a) the supplier:
(i) supplies to the
consumer under the agreement the goods or services to be supplied under the
agreement; or
(ii) accepts any payment,
or any other consideration, in connection with those goods or services; or
(iii) requires any payment,
or any other consideration, in connection with those goods or services; and
(b) the supply, acceptance or
requirement occurs during the period of 10 business days starting:
(i) if the agreement was
not negotiated by telephone—at the start of the first business day after the
day on which the agreement was made; or
(ii) if the agreement was
negotiated by telephone—at the start of the first business day after the day on
which the consumer was given the agreement document relating to the agreement.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) Strict liability applies to subsection (1)(a).
180
Repayment of payments received after termination
(1) The supplier under an unsolicited
consumer agreement commits an offence if:
(a) the agreement is terminated in
accordance with section 82; and
(b) the supplier does not immediately
refund to the consumer under the agreement any payment:
(i) that the consumer, or
a person acting on the consumer’s behalf, makes to the supplier after the
termination; and
(ii) that purports to be
made under the agreement or a related contract or instrument.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) Subsection (1) is an offence of
strict liability.
181
Prohibition on recovering amounts after termination
(1) A person commits an offence if:
(a) an unsolicited consumer agreement
is terminated in accordance with section 82; and
(b) the person:
(i) brings, or asserts an
intention to bring, legal proceedings against the consumer; or
(ii) takes, or asserts an
intention to take, any other action against the consumer;
in relation to an amount alleged
to be payable, under the agreement or a related contract or instrument, by the
consumer under the agreement.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) A person commits an offence if:
(a) an unsolicited consumer agreement
is terminated in accordance with section 82; and
(b) for the purpose of recovering an
amount alleged to be payable, under the agreement or a related contract or
instrument, by the consumer under the agreement, the person:
(i) places the consumer’s
name, or causes the consumer’s name to be placed, on a list of defaulters or
debtors; or
(ii) asserts an intention
to place the consumer’s name, or to cause the consumer’s name to be placed, on
such a list.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(3) Subsection (1) is an offence of
strict liability.
(4) Strict liability applies to subsection (2)(a).
Subdivision D—Miscellaneous
182
Certain provisions of unsolicited consumer agreements void
(1) The supplier under an unsolicited
consumer agreement commits an offence if the agreement includes, or purports to
include, a provision (however described) that is, or would be, void because of
section 89(1).
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) The supplier under an unsolicited
consumer agreement commits an offence if the supplier attempts to enforce or
rely on a provision (however described) that is void because of section 89(1).
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(3) Subsections (1) and (2) are offences
of strict liability.
183
Waiver of rights
(1) The supplier under an unsolicited
consumer agreement commits an offence if the supplier induces the consumer to
waive any right conferred by Division 2 of Part 3‑2.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) Subsection (1) is an offence of
strict liability.
184
Application of this Division to persons to whom rights of consumers and
suppliers are assigned etc.
(1) This Division applies in relation to a
person to whom the rights of a consumer (the original consumer)
under a contract for the supply of goods or services are assigned or
transferred, or pass by operation of law, (whether from the original consumer
or from another person) as if the person were the original consumer.
(2) This Division applies in relation to a
person to whom the rights of a supplier (the original supplier)
under a contract for the supply of goods or services are assigned or
transferred, or pass by operation of law, (whether from the original supplier
or from another person) as if the person were the original supplier.
185
Application of this Division to supplies to third parties
This Division applies in relation to a
contract for the supply of goods or services to a consumer (the original
consumer) on the order of another person as if the other person were
also the consumer.
186
Regulations may limit the application of this Division
This Division (other than section 170)
does not apply, or provisions of this Division (other than section 170)
that are specified in regulations made for the purposes of section 94 do
not apply, to or in relation to:
(a) circumstances of a kind specified
in those regulations; or
(b) agreements of a kind specified in
those regulations; or
(c) the conduct of businesses of a
kind specified in those regulations.
187
Application of this Division to certain conduct covered by the Corporations Act
This Division does not apply in relation
to conduct to which section 736, 992A or 992AA of the Corporations Act
2001 applies.
Note: Section 736 of the Corporations Act
2001 prohibits hawking of securities. Section 992A of that Act
prohibits hawking of certain financial products. Section 992AA of that Act
prohibits hawking of managed investment products.
Division 3—Lay‑by
agreements
188
Lay‑by agreements must be in writing etc.
(1) A supplier of consumer goods who is a
party to a lay‑by agreement commits an offence if:
(a) the agreement is not in writing;
or
(b) a copy of the agreement is not
given to the consumer to whom the goods are, or are to be, supplied.
Penalty:
(a) if the person is a body
corporate—$30,000; or
(b) if the person is not a body
corporate—$6,000.
(2) Subsection (1) is an offence of
strict liability.
189
Termination charges
(1) A supplier of consumer goods who is a
party to a lay‑by agreement commits an offence if the agreement requires
the consumer to pay a termination charge.
Penalty:
(a) if the person is a body
corporate—$30,000; or
(b) if the person is not a body
corporate—$6,000.
(2) Subsection (1) does not apply if the
termination charge is payable only if:
(a) the agreement is terminated by the
consumer; and
(b) the supplier has not breached the
agreement.
(3) A supplier of consumer goods who is a
party to a lay‑by agreement commits an offence if:
(a) the agreement provides that a
termination charge is payable; and
(b) the amount of the charge is more
than the supplier’s reasonable costs in relation to the agreement.
Penalty:
(a) if the person is a body
corporate—$30,000; or
(b) if the person is not a body corporate—$6,000.
(4) Subsections (1) and (3) are offences
of strict liability.
190
Termination of lay‑by agreements by suppliers
(1) A supplier of consumer goods who is a
party to a lay‑by agreement commits an offence if the supplier terminates
the agreement.
Penalty:
(a) if the person is a body
corporate—$30,000; or
(b) if the person is not a body
corporate—$6,000.
(2) Subsection (1) does not apply if:
(a) the consumer who is a party to the
agreement breached a term of the agreement; or
(b) the supplier is no longer engaged
in trade or commerce; or
(c) the consumer goods to which the
agreement relates are no longer available.
(3) Subsection (1) is an offence of
strict liability.
191
Refund of amounts
(1) A supplier of consumer goods who is a
party to a lay‑by agreement commits an offence if:
(a) the agreement is terminated by a
party to the agreement; and
(b) the supplier fails to refund to
the consumer all the amounts paid by the consumer under the agreement (other
than any termination charge that is payable under the agreement).
Penalty:
(a) if the person is a body
corporate—$30,000; or
(b) if the person is not a body
corporate—$6,000.
(2) Subsection (1) is an offence of
strict liability.
Division 4—Miscellaneous
192
Prescribed requirements for warranties against defects
(1) A person commits an offence if the
person, in connection with the supply, in trade or commerce, of goods or
services to a consumer:
(a) gives to the consumer a document
that evidences a warranty against defects and that does not comply with the
requirements prescribed for the purposes of section 102(1); or
(b) represents directly to the
consumer that the goods or services are goods or services to which such a
warranty against defects relates.
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) Subsection (1) is an offence of
strict liability.
193
Repairers must comply with prescribed requirements
(1) A person commits an offence if:
(a) the person accepts from another
person goods that the other person acquired as a consumer; and
(b) the goods are accepted for the
purpose of repairing them; and
(c) the person does not give to the
other person a notice that complies with the requirements prescribed for the
purposes of section 103(1).
Penalty:
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a body
corporate—$10,000.
(2) Subsection (1) is an offence of
strict liability.
Part 4‑3—Offences relating
to safety of consumer goods and product related services
Division 1—Safety standards
194
Supplying etc. consumer goods that do not comply with safety standards
(1) A person commits an offence if:
(a) the person, in trade or commerce,
supplies consumer goods of a particular kind; and
(b) a safety standard for consumer
goods of that kind is in force; and
(c) those goods do not comply with the
standard.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce,
offers for supply (other than for export) consumer goods of a particular kind;
and
(b) a safety standard for consumer
goods of that kind is in force; and
(c) those goods do not comply with the
standard.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) A person commits an offence if:
(a) the person, in or for the purposes
of trade or commerce, manufactures, possesses or has control of consumer goods
of a particular kind; and
(b) a safety standard for consumer
goods of that kind is in force; and
(c) those goods do not comply with the
standard.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(4) Subsection (3) does not apply if the
person does not manufacture, possess or control the goods for the purpose of
supplying the goods (other than for export).
(5) A person commits an offence if:
(a) the person, in trade or commerce, exports
consumer goods of a particular kind; and
(b) a safety standard for consumer
goods of that kind is in force; and
(c) those goods do not comply with the
standard.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(6) Subsection (5) does not apply if the
Commonwealth Minister has, by written notice given to the person, approved the
export of the goods under section 106(5).
(7) Subsections (1), (2), (3) and (5)
are offences of strict liability.
195
Supplying etc. product related services that do not comply with safety
standards
(1) A person commits an offence if:
(a) the person, in trade or commerce,
supplies product related services of a particular kind; and
(b) a safety standard for services of
that kind is in force; and
(c) those services do not comply with
the standard.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce,
offers for supply product related services of a particular kind; and
(b) a safety standard for services of
that kind is in force; and
(c) those services do not comply with
the standard.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) Subsections (1) and (2) are offences
of strict liability.
196
Requirement to nominate a safety standard
(1) A person commits an offence if the person
refuses or fails to comply with a request given to the person under section 108.
Penalty:
(a) if the person is a body
corporate—$22,000; or
(b) if the person is not a body
corporate—$4,400.
(2) Subsection (1) is an offence of
strict liability.
Division 2—Bans on consumer
goods and product related services
197
Supplying etc. consumer goods covered by a ban
(1) A person commits an offence if:
(a) the person, in trade or commerce,
supplies consumer goods of a particular kind; and
(b) either:
(i) an interim ban on
goods of that kind is in force in the place where the supply occurs; or
(ii) a permanent ban on
goods of that kind is in force.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce,
offers for supply (other than for export) consumer goods of a particular kind;
and
(b) the supply would be prohibited by subsection (1).
Penalty:
(a) if the person is a body corporate—$1,100,000;
or
(b) if the person is not a body
corporate—$220,000.
(3) A person commits an offence if:
(a) the person, in or for the purposes
of trade or commerce, manufactures, possesses or has control of consumer goods
of a particular kind; and
(b) supply of the goods would be
prohibited by subsection (1).
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(4) Subsection (3) does not apply if the
person does not manufacture, possess or control the goods for the purpose of
supplying the goods (other than for export).
(5) A person commits an offence if:
(a) the person exports consumer goods
of a particular kind; and
(b) supply of the goods would be
prohibited by subsection (1).
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(6) Subsection (5) does not apply if the
Commonwealth Minister has, by written notice given to the person, approved the
export of the goods under section 118(5).
(7) Subsections (1), (2), (3) and (5)
are offences of strict liability.
198
Supplying etc. product related services covered by a ban
(1) A person commits an offence if:
(a) the person, in trade or commerce,
supplies product related services of a particular kind; and
(b) either:
(i) an interim ban on
services of that kind is in force in the place where the supply occurs; or
(ii) a permanent ban on
services of that kind is in force.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce,
offers for supply product related services of a particular kind; and
(b) the supply would be prohibited by subsection (1).
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) Subsections (1) and (2) are offences
of strict liability.
Division 3—Recall of consumer
goods
199
Compliance with recall orders
(1) A person commits an offence if:
(a) a recall notice for consumer goods
is in force; and
(b) the notice requires the person
(other than the regulator) to do one or more things; and
(c) the person refuses or fails to
comply with the notice.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if:
(a) a recall notice for consumer goods
is in force; and
(b) the person, in trade or commerce:
(i) if the notice
identifies a defect in, or a dangerous characteristic of, the consumer
goods—supplies consumer goods of the kind to which the notice relates which
contain that defect or have that characteristic; or
(ii) in any other
case—supplies consumer goods of the kind to which the notice relates.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) Subsections (1) and (2) are offences
of strict liability.
200
Notification by persons who supply consumer goods outside Australia if there is
compulsory recall
(1) A person commits an offence if:
(a) the person is required by section 125(4)
to give a copy of a notice to a responsible Minister; and
(b) the person refuses or fails to
give the copy as required by that section.
Penalty:
(a) if the person is a body
corporate—$16,650; or
(b) if the person is not a body
corporate—$3,330.
(2) Subsection (1) is an offence of
strict liability.
201
Notification requirements for a voluntary recall of consumer goods
(1) A person commits an offence if:
(a) the person is required by section 128(2)
to give a notice to the Commonwealth Minister; and
(b) the person refuses or fails to
give the notice as required by that section.
Penalty:
(a) if the person is a body
corporate—$16,650; or
(b) if the person is not a body
corporate—$3,330.
(2) A person commits an offence if:
(a) the person is required by section 128(6)
to give a copy of a notice to the Commonwealth Minister; and
(b) the person refuses or fails to
give the copy as required by that section.
Penalty:
(a) if the person is a body
corporate—$16,650; or
(b) if the person is not a body
corporate—$3,330.
(3) Subsections (1) and (2) are offences
of strict liability.
Division 4—Consumer goods, or
product related services, associated with death or serious injury or illness
202
Suppliers to report consumer goods etc. associated with the death or serious
injury or illness of any person
(1) A person commits an offence if:
(a) the person is required by section 131
or 132 to give a notice to the Commonwealth Minister; and
(b) the person refuses or fails to
give the notice as required by that section.
Penalty:
(a) if the person is a body
corporate—$16,650; or
(b) if the person is not a body
corporate—$3,330.
(2) Subsection (1) is an offence of
strict liability.
Part 4‑4—Offences relating
to information standards
203
Supplying etc. goods that do not comply with information standards
(1) A person commits an offence if:
(a) the person, in trade or commerce,
supplies goods of a particular kind; and
(b) an information standard for goods
of that kind is in force; and
(c) the person has not complied with
the standard in relation to the goods.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce,
offers for supply goods of a particular kind; and
(b) an information standard for goods
of that kind is in force; and
(c) the person has not complied with
the standard in relation to the goods.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) A person commits an offence if:
(a) the person, in or for the purposes
of trade or commerce, manufactures, possesses or has control of goods of a
particular kind; and
(b) an information standard for goods
of that kind is in force; and
(c) the person has not complied with
the standard in relation to the goods.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(4) Subsection (3) does not apply if the
person does not manufacture, possess or control the goods for the purpose of
supplying the goods.
(5) Subsection (1), (2) or (3) does not
apply to goods that are intended to be used outside Australia.
(6) Unless the contrary is established, it is
presumed, for the purposes of this section, that goods are intended to be used
outside Australia if either of the following is applied to the goods:
(a) a statement that the goods are for
export only;
(b) a
statement indicating, by the use of words authorised by regulations made for
the purposes of section 136(6)(b) to be used for the purposes of section 136(6),
that the goods are intended to be used outside Australia.
(7) Without limiting subsection (6), a
statement may, for the purposes of that subsection, be applied to goods by
being:
(a) woven in, impressed on, worked
into or annexed or affixed to the goods; or
(b) applied to a covering, label, reel
or thing in or with which the goods are supplied.
(8) Subsections (1), (2) and (3) are
offences of strict liability.
204
Supplying etc. services that do not comply with information standards
(1) A person commits an offence if:
(a) the person, in trade or commerce,
supplies services of a particular kind; and
(b) an information standard for
services of that kind is in force; and
(c) the person has not complied with
the standard in relation to the services.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce,
offers for supply services of a particular kind; and
(b) an information standard for
services of that kind is in force; and
(c) the person has not complied with
the standard in relation to the services.
Penalty:
(a) if the person is a body
corporate—$1,100,000; or
(b) if the person is not a body
corporate—$220,000.
(3) Subsections (1) and (2) are offences
of strict liability.
Part 4‑5—Offences relating
to substantiation notices
205
Compliance with substantiation notices
(1) A person commits an offence if the
person:
(a) is given a substantiation notice; and
(b) refuses or fails to comply with it
within the substantiation notice compliance period for the notice.
Penalty:
(a) if the person is a body
corporate—$16,500; or
(b) if the person is not a body
corporate—$3,300.
(2) Subsection (1) does not apply if:
(a) the person is an individual; and
(b) the person refuses or fails to
give particular information or produce a particular document in compliance with
a substantiation notice; and
(c) the information, or production of
the document, might tend to incriminate the individual or to expose the
individual to a penalty.
(3) Subsection (1) is an offence of
strict liability.
206
False or misleading information etc.
(1) A person commits an offence if the
person, in compliance or purported compliance with a substantiation notice
given by the regulator:
(a) gives to the regulator false or
misleading information; or
(b) produces to the regulator
documents that contain false or misleading information.
Penalty:
(a) if the person is a body
corporate—$27,500; or
(b) if the person is not a body
corporate—$5,500.
(2) This section does not apply to:
(a) information that the person could
not have known was false or misleading; or
(b) the production to the regulator of
a document containing false or misleading information if the document is
accompanied by a statement of the person that the information is false or
misleading.
(3) Subsection (1) is an offence of
strict liability.
Part 4‑6—Defences
207
Reasonable mistake of fact
(1) In a prosecution for a contravention of a
provision of this Chapter, it is a defence if the defendant proves that the
contravention was caused by a reasonable mistake of fact, including a mistake
of fact caused by reasonable reliance on information supplied by another
person.
(2) However, subsection (1) does not
apply in relation to information relied upon by the defendant that was supplied
to the defendant by another person who was, at the time when the contravention
occurred:
(a) an employee or agent of the
defendant; or
(b) if the defendant is a body
corporate—a director, employee or agent of the defendant.
(3) If a defence provided by subsection (1)
involves an allegation that a contravention was due to reliance on information
supplied by another person, the defendant is not entitled to rely on that
defence unless:
(a) the court gives leave; or
(b) the defendant has, not later than
7 days before the day on which the hearing of the proceeding commences, served
on the person who instituted the proceeding a written notice giving such
information as the defendant then had that would identify or assist in
identifying the other person.
208
Act or default of another person etc.
(1) In a prosecution for a contravention of a
provision of this Chapter, it is a defence if the defendant proves that:
(a) the contravention was due to the
act or default of another person, to an accident or to some other cause beyond
the defendant’s control; and
(b) the defendant took reasonable
precautions and exercised due diligence to avoid the contravention.
(2) However, subsection (1) does not
apply in relation to the act or default of another person who was, at the time
when the contravention occurred:
(a) an employee or agent of the
defendant; or
(b) if the defendant is a body
corporate—a director, employee or agent of the defendant.
(3) If a defence provided by subsection (1)
involves an allegation that a contravention was due to the act or default of
another person, the defendant is not entitled to rely on that defence unless:
(a) the court gives leave; or
(b) the defendant has, not later than
7 days before the day on which the hearing of the proceeding commences, served
on the person who instituted the proceeding a written notice giving such
information as the defendant then had that would identify or assist in
identifying the other person.
209
Publication of advertisements in the ordinary course of business
In a prosecution for a contravention of
a provision of this Chapter that was committed by publication of an
advertisement, it is a defence if the defendant proves that:
(a) the defendant is a person whose
business it is to publish or arrange for the publication of advertisements; and
(b) the defendant received the
advertisement for publication in the ordinary course of business; and
(c) the defendant did not know, and
had no reason to suspect, that its publication would amount to a contravention
of such a provision.
210
Supplying goods acquired for the purpose of re‑supply
(1) In a prosecution for a contravention of a
provision of this Chapter that was committed by supplying goods in
contravention of section 194 or 203, it is a defence if the defendant
proves that:
(a) the goods were acquired by the
defendant for the purpose of re‑supply; and
(b) the goods were so acquired from a
person who carried on in Australia a business of supplying such goods otherwise
than as the agent of a person outside Australia; and
(c) in the case of a contravention of
section 194—the defendant:
(i) did not know, and
could not with reasonable diligence have ascertained, that the goods did not
comply with the safety standard to which the contravention relates; or
(ii) relied in good faith
on a representation by the person from whom the defendant acquired the goods
that there was no safety standard for such goods; and
(d) in the case of a contravention of
section 203—the defendant:
(i) did not know, and
could not with reasonable diligence have ascertained, that the defendant had
not complied with the information standard to which the contravention relates;
or
(ii) relied in good faith
on a representation by the person from whom the defendant acquired the goods
that there was no information standard for such goods.
Note: Section 194 is about supply of consumer
goods that do not comply with safety standards, and section 203 is about
supply of goods that do not comply with information standards.
(2) A defendant is not entitled to rely on
the defence provided by subsection (1) unless:
(a) the court gives leave; or
(b) the defendant has, not later than
7 days before the day on which the hearing of the proceeding commences, served
on the person who instituted the proceeding a written notice identifying the
person from whom the defendant acquired the goods.
211
Supplying services acquired for the purpose of re‑supply
(1) In a prosecution for a contravention of a
provision of this Chapter that was committed by supplying services in
contravention of section 195 or 204, it is a defence if the defendant
proves that:
(a) the services were acquired by the
defendant for the purpose of re‑supply; and
(b) the services were so acquired from
a person who carried on in Australia a business of supplying such services
otherwise than as the agent of a person outside Australia; and
(c) in the case of a contravention of
section 195—the defendant:
(i) did not know, and
could not with reasonable diligence have ascertained, that the services did not
comply with the safety standard to which the contravention relates; or
(ii) relied in good faith
on a representation by the person from whom the defendant acquired the services
that there was no safety standard for such services; and
(d) in the case of a contravention of
section 204—the defendant:
(i) did not know, and
could not with reasonable diligence have ascertained, that the defendant had
not complied with the information standard to which the contravention relates;
or
(ii) relied in good faith
on a representation by the person from whom the defendant acquired the services
that there was no information standard for such services.
Note: Section 195 is about supply of product
related services that do not comply with safety standards, and section 204
is about supply of services that do not comply with information standards.
(2) A defendant is not entitled to rely on
the defence provided by subsection (1) unless:
(a) the court gives leave; or
(b) the defendant has, not later than
7 days before the day on which the hearing of the proceeding commences, served
on the person who instituted the proceeding a written notice identifying the
person from whom the defendant acquired the services.
Part 4‑7—Miscellaneous
212
Prosecutions to be commenced within 3 years
A prosecution for an offence against a
provision of this Chapter may be commenced at any time within 3 years after the
commission of the offence.
213
Preference must be given to compensation for victims
If a court considers that:
(a) it is appropriate to impose a fine
on a person (the defendant) under this Chapter in relation to:
(i) a contravention of a
provision of this Schedule; or
(ii) an attempt to
contravene such a provision; or
(iii) aiding, abetting,
counselling or procuring a person to contravene such a provision; or
(iv) inducing, or attempting
to induce, a person, whether by threats or promises or otherwise, to contravene
such a provision; or
(v) being in any way,
directly or indirectly, knowingly concerned in, or party to, the contravention
by a person of such a provision; or
(vi) conspiring with others
to contravene such a provision; and
(b) it is appropriate to order the
defendant to pay compensation to a person who has suffered loss or damage as
result of that contravention or conduct; and
(c) the defendant does not have
sufficient financial resources to pay both the fine and the compensation;
the court must give preference to making an order for
compensation.
214
Penalties for contraventions of the same nature etc.
(1) If:
(a) a person is convicted of 2 or more
offences constituted by, or relating to, contraventions of the same provision
of this Chapter; and
(b) the contraventions appear to the
court:
(i) to have been of the
same nature or a substantially similar nature; and
(ii) to have occurred at or
about the same time;
the court must not, in respect of the offences, impose on
the person fines that, in the aggregate, exceed the maximum fine that would be
applicable in respect of one offence by that person against that provision.
(2) This section applies whether or not the
person is also convicted of an offence or offences constituted by, or relating
to, another contravention or other contraventions of that provision that were
of a different nature or occurred at a different time.
215
Penalties for previous contraventions of the same nature etc.
(1) If:
(a) a person is convicted of an offence
constituted by, or relating to, a contravention of a provision of this Chapter;
and
(b) a
fine has, or fines have, previously been imposed on the person by the court for
an offence or offences constituted by, or relating to, another contravention or
other contraventions of the same provision; and
(c) the contravention, or each of the
contraventions, mentioned in paragraph (b) appear to the court:
(i) to have been of the
same nature as, or a substantially similar nature to, the contravention mentioned
in paragraph (a); and
(ii) to have occurred at or
about the same time as the contravention mentioned in paragraph (a);
the court must not, in respect of the offence mentioned in
paragraph (a), impose on the person a fine that exceeds the amount (if any)
by which the maximum fine applicable in respect of that offence is greater than
the amount of the fine, or the sum of the amounts of the fines, referred to in paragraph (b).
(2) This section applies whether or not a
fine has, or fines have, also previously been imposed on the person for an
offence or offences constituted by, or relating to, a contravention or
contraventions of that provision that were of a different nature or occurred at
a different time.
216
Granting of injunctions etc.
In proceedings against a person for a
contravention of a provision of this Chapter, the court may:
(a) grant an injunction under Division 2
of Part 5‑2 against the person in relation to:
(i) the conduct that
constitutes, or is alleged to constitute, the contravention; or
(ii) other conduct of that
kind; or
(b) make an order under section 246,
247 or 248 in relation to the contravention.
217
Criminal proceedings not to be brought for contraventions of Chapter 2 or
3
Criminal proceedings do not lie against
a person only because the person:
(a) has contravened a provision of
Chapter 2 or 3; or
(b) has attempted to contravene such a
provision; or
(c) has aided, abetted, counselled or
procured a person to contravene such a provision; or
(d) has induced, or attempted to
induce, a person, whether by threats or promises or otherwise, to contravene
such a provision; or
(e) has been in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of such a provision; or
(f) has conspired with others to
contravene such a provision.
Chapter 5—Enforcement and
remedies
Part 5‑1—Enforcement
Division 1—Undertakings
218
Regulator may accept undertakings
(1) The regulator may accept a written
undertaking given by a person for the purposes of this section in connection
with a matter in relation to which the regulator has a power or function under
this Schedule.
(2) The person may, with the consent of the
regulator, withdraw or vary the undertaking at any time.
(3) If the regulator considers that the
person who gave the undertaking has breached any of its terms, the regulator
may apply to a court for an order under subsection (4).
(4) If the court is satisfied that the person
has breached a term of the undertaking, the court may make all or any of the
following orders:
(a) an order directing the person to
comply with that term of the undertaking;
(b) an order directing the person to
pay to the Commonwealth, or to a State or Territory, an amount up to the amount
of any financial benefit that the person has obtained directly or indirectly
and that is reasonably attributable to the breach;
(c) any order that the court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(d) any other order that the court
considers appropriate.
Division 2—Substantiation
notices
219
Regulator may require claims to be substantiated etc.
(1) This section applies if a person has, in
trade or commerce, made a claim or representation promoting, or apparently
intended to promote:
(a) a supply, or possible supply, of
goods or services by the person or another person; or
(b) a sale or grant, or possible sale
or grant, of an interest in land by the person or another person; or
(c) employment that is to be, or may
be, offered by the person or another person.
(2) The regulator may give the person who
made the claim or representation a written notice that requires the person to
do one or more of the following:
(a) give information and/or produce
documents to the regulator that could be capable of substantiating or
supporting the claim or representation;
(b) if the claim or representation
relates to a supply, or possible supply, of goods or services by the person or another
person—give information and/or produce documents to the regulator that could be
capable of substantiating:
(i) the quantities in
which; and
(ii) the period for which;
the person or other person is or
will be able to make such a supply (whether or not the claim or representation
relates to those quantities or that period);
(c) give information and/or produce
documents to the regulator that are of a kind specified in the notice;
within 21 days after the notice is given to the person who
made the claim or representation.
(3) Any kind of information or documents that
the regulator specifies under subsection (2)(c) must be a kind that the
regulator is satisfied is relevant to:
(a) substantiating or supporting the
claim or representation; or
(b) if the claim or representation
relates to a supply, or possible supply, of goods or services by the person or
another person—substantiating the quantities in which, or the period for which,
the person or other person is or will be able to make such a supply.
(4) The notice must:
(a) name the person to whom it is
given; and
(b) specify the claim or
representation to which it relates; and
(c) explain the effect of sections 220,
221 and 222.
(5) The notice may relate to more than one
claim or representation that the person has made.
(6) This section does not apply to a person
who made the claim or representation if the person:
(a) is an information provider; and
(b) made the claim or representation
by publishing it on behalf of another person in the course of carrying on a
business of providing information; and
(c) does not have a commercial
relationship with the other person other than for the purpose of:
(i) publishing claims or
representations promoting, or apparently intended to promote, the other
person’s business or other activities; or
(ii) the other person
supplying goods or services, or selling or granting interests in land to the
person.
220
Extending periods for complying with substantiation notices
(1) A person who has been given a
substantiation notice may, at any time within 21 days after the notice was
given to the person by the regulator, apply in writing to the regulator for an
extension of the period for complying with the notice.
(2) The regulator may, by written notice
given to the person, extend the period within which the person must comply with
the notice.
221
Compliance with substantiation notices
(1) A person who is given a substantiation
notice must comply with it within the substantiation notice compliance period
for the notice.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) The substantiation notice
compliance period for a substantiation notice is:
(a) the period of 21 days specified in
the notice; or
(b) if the period for complying with
the notice has been extended under section 220—the period as so extended;
and includes (if an application has been made under
section 220(1) for an extension of the period for complying with the
notice) the period up until the time when the applicant is given notice of the
regulator’s decision on the application.
(3) Despite subsection (1), an
individual may refuse or fail to give particular information or produce a
particular document in compliance with a substantiation notice on the ground
that the information or production of the document might tend to incriminate
the individual or to expose the individual to a penalty.
222
False or misleading information etc.
(1) A person must not, in compliance or
purported compliance with a substantiation notice given by the regulator:
(a) give to the regulator false or
misleading information; or
(b) produce to the regulator documents
that contain false or misleading information.
Note: A pecuniary penalty may be imposed for a
contravention of this subsection.
(2) This section does not apply to:
(a) information that the person could
not have known was false or misleading; or
(b) the production to the regulator of
a document containing false or misleading information if the document is
accompanied by a statement of the person that the information is false or
misleading.
Division 3—Public warning
notices
223
Regulator may issue a public warning notice
(1) The regulator may issue to the public a
written notice containing a warning about the conduct of a person if:
(a) the regulator has reasonable
grounds to suspect that the conduct may constitute a contravention of a
provision of Chapter 2, 3 or 4; and
(b) the regulator is satisfied that
one or more other persons has suffered, or is likely to suffer, detriment as a
result of the conduct; and
(c) the regulator is satisfied that it
is in the public interest to issue the notice.
(2) Without limiting subsection (1), if:
(a) a person refuses to respond to a
substantiation notice given by the regulator to the person, or fails to respond
to the notice before the end of the substantiation notice compliance period for
the notice; and
(b) the regulator is satisfied that it
is in the public interest to issue a notice under this subsection;
the regulator may issue to the public a written notice
containing a warning that the person has refused or failed to respond to the
substantiation notice within that period, and specifying the matter to which
the substantiation notice related.
Part 5‑2—Remedies
Division 1—Pecuniary penalties
224 Pecuniary
penalties
(1) If a court is satisfied that a person:
(a) has contravened any of the
following provisions:
(i) a provision of Part 2‑2
(which is about unconscionable conduct);
(ii) a provision of Part 3‑1
(which is about unfair practices);
(iii) section 66(2)
(which is about display notices);
(iv) a provision (other than
section 85) of Division 2 of Part 3‑2 (which is about
unsolicited consumer agreements);
(v) a provision (other than
section 96(2)) of Division 3 of Part 3‑2 (which is about
lay‑by agreements);
(vi) section 100(1) or
(3) or 101(3) or (4) (which are about proof of transactions and itemised
bills);
(vii) section 102(2) or 103(2)
(which are about prescribed requirements for warranties and repairers);
(viii) section 106(1),
(2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2), 125(4),
127(1) or (2), 128(2) or (6), 131(1) or 132(1) (which are about safety of
consumer goods and product related services);
(ix) section 136(1),
(2) or (3) or 137(1) or (2) (which are about information standards);
(x) section 221(1) or 222(1)
(which are about substantiation notices); or
(b) has attempted to contravene such a
provision; or
(c) has aided, abetted, counselled or
procured a person to contravene such a provision; or
(d) has induced, or attempted to
induce, a person, whether by threats or promises or otherwise, to contravene
such a provision; or
(e) has been in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of such a provision; or
(f) has
conspired with others to contravene such a provision;
the court may order the person to pay to the Commonwealth,
State or Territory, as the case may be, such pecuniary penalty, in respect of
each act or omission by the person to which this section applies, as the court
determines to be appropriate.
(2) In determining the appropriate pecuniary
penalty, the court must have regard to all relevant matters including:
(a) the nature and extent of the act
or omission and of any loss or damage suffered as a result of the act or
omission; and
(b) the circumstances in which the act
or omission took place; and
(c) whether the person has previously
been found by a court in proceedings under Chapter 4 or this Part to have
engaged in any similar conduct.
(3) The pecuniary penalty payable under subsection (1)
is not to exceed the amount worked out using the following table:
|
Amount of pecuniary
penalty
|
|
Item
|
For each act or
omission to which this section applies that relates to ...
|
the pecuniary penalty
is not to exceed ...
|
|
1
|
a provision of Part 2‑2
|
(a) if the person is a body corporate—$1.1 million; or
(b) if the person is not a body corporate—$220,000.
|
|
2
|
a provision of Part 3‑1 (other than section 47(1))
|
(a) if the person is a body corporate—$1.1 million; or
(b) if the person is not a body corporate—$220,000.
|
|
3
|
section 47(1)
|
(a) if the person is a body corporate—$5,000; or
(b) if the person is not a body corporate—$1,000.
|
|
4
|
section 66(2)
|
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
|
|
5
|
a provision of Division 2 of Part 3‑2
(other than section 85)
|
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
|
|
6
|
a provision of Division 3 of Part 3‑2
(other than section 96(2))
|
(a) if the person is a body corporate—$30,000; or
(b) if the person is not a body corporate—$6,000.
|
|
7
|
section 100(1) or (3) or 101(3) or (4)
|
(a) if the person is a body corporate—$15,000; or
(b) if the person is not a body corporate—$3,000.
|
|
8
|
section 102(2) or 103(2)
|
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
|
|
9
|
section 106(1), (2), (3) or (5), 107(1) or (2), 118(1),
(2), (3) or (5) or 119(1) or (2)
|
(a) if the person is a body corporate—$1.1 million; or
(b) if the person is not a body corporate—$220,000.
|
|
10
|
section 125(4)
|
(a) if the person is a body corporate—$16,500; or
(b) if the person is not a body corporate—$3,300.
|
|
11
|
section 127(1) or (2)
|
(a) if the person is a body corporate—$1.1 million; or
(b) if the person is not a body corporate—$220,000.
|
|
12
|
section 128(2) or (6), 131(1) or 132(1)
|
(a) if the person is a body corporate—$16,500; or
(b) if the person is not a body corporate—$3,300.
|
|
13
|
section 136(1), (2) or (3) or 137(1) or (2)
|
(a) if the person is a body corporate—$1.1 million; or
(b) if the person is not a body corporate—$220,000.
|
|
14
|
section 221(1)
|
(a) if the person is a body corporate—$16,500; or
(b) if the person is not a body corporate—$3,300.
|
|
15
|
section 222(1)
|
(a) if the person is a body corporate—$27,500; or
(b) if the person is not a body corporate—$5,500.
|
(4) If conduct constitutes a contravention of
2 or more provisions referred to in subsection (1)(a):
(a) a proceeding may be instituted
under this Schedule against a person in relation to the contravention of any
one or more of the provisions; but
(b) a person is not liable to more
than one pecuniary penalty under this section in respect of the same conduct.
225
Pecuniary penalties and offences
(1) A court must not make an order under
section 224 against a person in relation to either of the following
matters (a consumer protection breach):
(a) a contravention of a provision
referred to in section 224(1)(a);
(b) conduct referred to in section 224(1)(b),
(c), (d), (e) or (f) that relates to a contravention of such a provision;
if the person has been convicted of an offence constituted
by conduct that is substantially the same as the conduct constituting the
consumer protection breach.
(2) Proceedings for an order under section 224
against a person in relation to a consumer protection breach are stayed if:
(a) criminal proceedings are started
or have already been started against the person for an offence; and
(b) the offence is constituted by
conduct that is substantially the same as the conduct alleged to constitute the
consumer protection breach.
The proceedings for the order may be resumed if the person
is not convicted of the offence. Otherwise, the proceedings are dismissed.
(3) Criminal proceedings may be started
against a person for conduct that is substantially the same as conduct
constituting a consumer protection breach regardless of whether an order under
section 224 has been made against the person in respect of the breach.
(4) Evidence of information given, or
evidence of the production of documents, by an individual is not admissible in
criminal proceedings against the individual if:
(a) the individual previously gave the
evidence or produced the documents in proceedings for an order under section 224
against the individual in relation to a consumer protection breach (whether or
not the order was made); and
(b) the conduct alleged to constitute
the offence is substantially the same as the conduct that was claimed to
constitute the consumer protection breach.
However, this does not apply to a criminal proceeding in
respect of the falsity of the evidence given by the individual in the
proceedings for the order.
226
Defence
If, in proceedings under section 224
against a person other than a body corporate, it appears to a court that the
person has, or may have:
(a) engaged in conduct in
contravention of a provision referred to in subsection (1)(a) of that
section; or
(b) engaged in conduct referred to in subsection (1)(b),
(c), (d), (e) or (f) of that section that relates to a contravention of such a
provision;
but that the person acted honestly and reasonably and,
having regard to all the circumstances of the case, ought fairly to be excused,
the court may relieve the person either wholly or partly from liability to a
pecuniary penalty under that section.
227
Preference must be given to compensation for victims
If a court considers that:
(a) it is appropriate to order a
person (the defendant) to pay a pecuniary penalty under section 224
in relation to:
(i) a contravention of a
provision referred to in subsection (1)(a) of that section; or
(ii) conduct referred to in
subsection (1)(b), (c), (d), (e) or (f) of that section that relates to a
contravention such a provision; and
(b) it is appropriate to order the
defendant to pay compensation to a person who has suffered loss or damage as
result of that contravention or conduct; and
(c) the defendant does not have
sufficient financial resources to pay both the pecuniary penalty and the compensation;
the court must give preference to making an order for
compensation.
228
Civil action for recovery of pecuniary penalties
(1) The regulator may institute a proceeding
in a court for the recovery on behalf of the Commonwealth, a State or a Territory,
as the case may be, of a pecuniary penalty referred to in section 224.
(2) A proceeding under subsection (1)
may be commenced at any time within 6 years after the contravention or conduct.
229
Indemnification of officers
(1) A body corporate (the first body),
or a body corporate related to the first body, commits an offence if it
indemnifies a person (whether by agreement or by making a payment and whether
directly or through an interposed entity) against either of the following
liabilities incurred as an officer (within the meaning of the Corporations
Act 2001) of the first body:
(a) a liability to pay a pecuniary
penalty under section 224;
(b) legal costs incurred in defending
or resisting proceedings in which the person is found to have such a liability.
Penalty: $2,750.
(2) For the purposes of subsection (1),
the outcome of proceedings is the outcome of the proceedings and any appeal in
relation to the proceedings.
230
Certain indemnities not authorised and certain documents void
(1) Section 229 does not authorise
anything that would otherwise be unlawful.
(2) Anything that purports to indemnify a
person against a liability is void to the extent that it contravenes section 229.
Division 2—Injunctions
232
Injunctions
(1) A court may grant an injunction, in such
terms as the court considers appropriate, if the court is satisfied that a
person has engaged, or is proposing to engage, in conduct that constitutes or
would constitute:
(a) a contravention of a provision of
Chapter 2, 3 or 4; or
(b) attempting to contravene such a
provision; or
(c) aiding, abetting, counselling or
procuring a person to contravene such a provision; or
(d) inducing, or attempting to induce,
whether by threats, promises or otherwise, a person to contravene such a provision;
or
(e) being in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of such a provision; or
(f) conspiring with others to
contravene such a provision.
(2) The court may grant the injunction on application
by the regulator or any other person.
(3) Subsection (1) applies in relation
to conduct constituted by applying or relying on, or purporting to apply or
rely on, a term of a consumer contract that has been declared under section 250
to be an unfair term as if the conduct were a contravention of a provision of
Chapter 2.
(4) The power of the court to grant an
injunction under subsection (1) restraining a person from engaging in
conduct may be exercised:
(a) whether or not it appears to the
court that the person intends to engage again, or to continue to engage, in
conduct of a kind referred to in that subsection; and
(b) whether or not the person has
previously engaged in conduct of that kind; and
(c) whether or not there is an
imminent danger of substantial damage to any other person if the person engages
in conduct of that kind.
(5) Without limiting subsection (1), the
court may grant an injunction under that subsection restraining a person from
carrying on a business or supplying goods or services (whether or not as part
of, or incidental to, the carrying on of another business):
(a) for a specified period; or
(b) except on specified terms and
conditions.
(6) Without limiting subsection (1), the
court may grant an injunction under that subsection requiring a person to do
any of the following:
(a) refund money;
(b) transfer property;
(c) honour a promise;
(d) destroy or dispose of goods.
(7) The power of the court to grant an
injunction under subsection (1) requiring a person to do an act or thing
may be exercised:
(a) whether or not it appears to the
court that the person intends to refuse or fail again, or to continue to refuse
or fail, to do that act or thing; and
(b) whether or not the person has
previously refused or failed to do that act or thing; and
(c) whether or not there is an
imminent danger of substantial damage to any other person if the person refuses
or fails to do that act or thing.
233
Consent injunctions
If an application is made under section 232,
the court may, if it considers that it is appropriate to do so, grant an
injunction under this section by consent of all the parties to the proceedings,
whether or not the court is satisfied as required by section 232(1).
234
Interim injunctions
(1) If an application is made under section 232,
the court may, if it considers it is desirable to do so, grant an interim
injunction under this subsection pending the determination of the application.
(2) If a responsible Minister or the
regulator made the application under section 232, the court must not
require the applicant or any other person to give any undertakings as to
damages as a condition of granting the interim injunction.
(3) If:
(a) in a case to which subsection (2)
does not apply the court would, but for this subsection, require a person to
give an undertaking as to damages or costs; and
(b) a
responsible Minister gives the undertaking;
the court must accept the undertaking by the responsible
Minister and must not require a further undertaking from any other person.
235
Variation and discharge of injunctions
A court may vary or discharge an
injunction (including an interim injunction) that it has granted under this
Division.
Division 3—Damages
236
Actions for damages
(1) If:
(a) a person (the claimant)
suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a
provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage
by action against that other person, or against any person involved in the
contravention.
(2) An action under subsection (1) may
be commenced at any time within 6 years after the day on which the cause of
action that relates to the conduct accrued.
Division 4—Compensation orders
etc. for injured persons and orders for non‑party consumers
Subdivision A—Compensation orders etc. for injured persons
237
Compensation orders etc. on application by an injured person or the regulator
(1) A court may:
(a) on application of a person (the injured
person) who has suffered, or is likely to suffer, loss or damage
because of the conduct of another person that:
(i) was engaged in a
contravention of a provision of Chapter 2, 3 or 4; or
(ii) constitutes applying
or relying on, or purporting to apply or rely on, a term of a consumer contract
that has been declared under section 250 to be an unfair term; or
(b) on the application of the
regulator made on behalf of one or more such injured persons;
make such order or orders as the court thinks appropriate
against the person who engaged in the conduct, or a person involved in that
conduct.
Note 1: For applications for an order or orders under
this subsection, see section 242.
Note 2: The orders that the court may make include all
or any of the orders set out in section 243.
(2) The order must be an order that the court
considers will:
(a) compensate the injured person, or
any such injured persons, in whole or in part for the loss or damage; or
(b) prevent or reduce the loss or
damage suffered, or likely to be suffered, by the injured person or any such
injured persons.
(3) An application under subsection (1)
may be made at any time within 6 years after the day on which:
(a) if subsection (1)(a)(i)
applies—the cause of action that relates to the conduct referred to in that subsection
accrued; or
(b) if subsection (1)(a)(ii)
applies—the declaration referred to in that subsection is made.
238
Compensation orders etc. arising out of other proceedings
(1) If a court finds, in a proceeding
instituted under a provision of Chapter 4 or this Chapter (other than this
section), that a person (the injured person) who is a party to
the proceeding has suffered, or is likely to suffer, loss or damage because of
the conduct of another person that:
(a) was engaged in a contravention of
a provision of Chapter 2, 3 or 4; or
(b) constitutes applying or relying
on, or purporting to apply or rely on, a term of a consumer contract that has
been declared under section 250 to be an unfair term;
the court may make such order or orders as it thinks
appropriate against the person who engaged in the conduct, or a person involved
in that conduct.
Note: The orders that the court may make include all
or any of the orders set out in section 243.
(2) The order must be an order that the court
considers will:
(a) compensate the injured person in
whole or in part for the loss or damage; or
(b) prevent or reduce the loss or
damage.
Subdivision B—Orders for non‑party consumers
239
Orders to redress etc. loss or damage suffered by non‑party consumers
(1) If:
(a) a person:
(i) engaged in conduct
(the contravening conduct) in contravention of a provision of
Chapter 2, Part 3‑1, Division 2, 3 or 4 of Part 3‑2
or Chapter 4; or
(ii) is a party to a
consumer contract who is advantaged by a term (the declared term)
of the contract in relation to which a court has made a declaration under
section 250; and
(b) the contravening conduct or
declared term caused, or is likely to cause, a class of persons to suffer loss
or damage; and
(c) the class includes persons who are
non‑party consumers in relation to the contravening conduct or declared
term;
a court may, on the application of the regulator, make
such order or orders (other than an award of damages) as the court thinks
appropriate against a person referred to in subsection (2) of this
section.
Note 1: For applications for an order or orders under
this subsection, see section 242.
Note 2: The orders that the court may make include all
or any of the orders set out in section 243.
(2) An order under subsection (1) may be
made against:
(a) if subsection (1)(a)(i)
applies—the person who engaged in the contravening conduct, or a person
involved in that conduct; or
(b) if subsection (1)(a)(ii)
applies—a party to the contract who is advantaged by the declared term.
(3) The order must be an order that the court
considers will:
(a) redress, in whole or in part, the
loss or damage suffered by the non‑party consumers in relation to the
contravening conduct or declared term; or
(b) prevent or reduce the loss or
damage suffered, or likely to be suffered, by the non‑party consumers in
relation to the contravening conduct or declared term.
(4) An application under subsection (1)
may be made at any time within 6 years after the day on which:
(a) if subsection (1)(a)(i)
applies—the cause of action that relates to the contravening conduct accrued;
or
(b) if subsection (1)(a)(ii)
applies—the declaration is made.
240
Determining whether to make a redress order etc. for non‑party consumers
(1) In determining whether to make an order
under section 239(1) against a person referred to in section 239(2)(a),
the court may have regard to the conduct of the person, and of the non‑party
consumers in relation to the contravening conduct, since the contravention
occurred.
(2) In determining whether to make an order
under section 239(1) against a person referred to in section 239(2)(b),
the court may have regard to the conduct of the person, and of the non‑party
consumers in relation to the declared term, since the declaration was made.
(3) In determining whether to make an order
under section 239(1), the court need not make a finding about either of
the following matters:
(a) which persons are non‑party
consumers in relation to the contravening conduct or declared term;
(b) the nature of the loss or damage
suffered, or likely to be suffered, by such persons.
241
When a non‑party consumer is bound by a redress order etc.
(1) A non‑party consumer is bound by an
order made under section 239(1) against a person if:
(a) the loss or damage suffered, or likely
to be suffered, by the non‑party consumer in relation to the contravening
conduct, or the declared term, to which the order relates has been redressed,
prevented or reduced in accordance with the order; and
(b) the non‑party consumer has
accepted the redress, prevention or reduction.
(2) Any other order made under section 239(1)
that relates to that loss or damage has no effect in relation to the non‑party
consumer.
(3) Despite any other provision of:
(a) this Schedule; or
(b) any other law of the Commonwealth,
or a State or a Territory;
no claim, action or demand may be made or taken against
the person by the non‑party consumer in relation to that loss or damage.
Subdivision C—Miscellaneous
242
Applications for orders
(1) An application may be made under section 237(1)
or 239(1) even if an enforcement proceeding in relation to the conduct, or the
term of a consumer contract, referred to in that subsection has not been
instituted.
(2) The regulator must not make an
application under section 237(1)(b) on behalf of one or more persons
unless those persons have consented in writing to the making of the
application.
243
Kinds of orders that may be made
Without limiting section 237(1), 238(1)
or 239(1), the orders that a court may make under any of those sections against
a person (the respondent) include all or any of the following:
(a) an order declaring the whole or
any part of a contract made between the respondent and a person (the injured
person) who suffered, or is likely to suffer, the loss or damage
referred to in that section, or of a collateral arrangement relating to such a
contract:
(i) to be void; and
(ii) if the court thinks
fit—to have been void ab initio or void at all times on and after such
date as is specified in the order (which may be a date that is before the date
on which the order is made);
(b) an order:
(i) varying such a
contract or arrangement in such manner as is specified in the order; and
(ii) if the court thinks
fit—declaring the contract or arrangement to have had effect as so varied on
and after such date as is specified in the order (which may be a date that is
before the date on which the order is made);
(c) an order refusing to enforce any
or all of the provisions of such a contract or arrangement;
(d) an order directing the respondent
to refund money or return property to the injured person;
(e) except if the order is to be made
under section 239(1)—an order directing the respondent to pay the injured
person the amount of the loss or damage;
(f) an order directing the
respondent, at his or her own expense, to repair, or provide parts for, goods
that had been supplied by the respondent to the injured person;
(g) an order directing the respondent,
at his or her own expense, to supply specified services to the injured person;
(h) an order, in relation to an
instrument creating or transferring an interest in land, directing the
respondent to execute an instrument that:
(i) varies, or has the
effect of varying, the first mentioned instrument; or
(ii) terminates or
otherwise affects, or has the effect of terminating or otherwise affecting, the
operation or effect of the first mentioned instrument.
244
Power of a court to make orders
A court may make an order under
Subdivision A or B of this Division whether or not the court:
(a) grants an injunction under
Division 2 of this Part; or
(b) makes an order under section 236,
246, 247 or 248.
245
Interaction with other provisions
Subdivisions A and B of this Division do
not limit the generality of Division 2 of this Part.
Division 5—Other remedies
246
Non‑punitive orders
(1) A court may, on application of the
regulator, make one or more of the orders mentioned in subsection (2) in
relation to a person who has engaged in conduct that:
(a) contravenes a provision of Chapter 2,
3 or 4; or
(b) constitutes an involvement in a
contravention of such a provision.
(2) The court
may make the following orders in relation to the person who has engaged in the
conduct:
(a) an order directing the person to
perform a service that is specified in the order, and that relates to the
conduct, for the benefit of the community or a section of the community;
(b) an order for the purpose of
ensuring that the person does not engage in the conduct, similar conduct, or
related conduct, during the period of the order (which must not be longer than
3 years) including:
(i) an order directing the
person to establish a compliance program for employees or other persons
involved in the person’s business, being a program designed to ensure their
awareness of the responsibilities and obligations in relation to such conduct;
and
(ii) an order directing the
person to establish an education and training program for employees or other
persons involved in the person’s business, being a program designed to ensure
their awareness of the responsibilities and obligations in relation to such
conduct; and
(iii) an order directing the
person to revise the internal operations of the person’s business which led to
the person engaging in such conduct;
(c) an order requiring the person to
disclose, in the way and to the persons specified in the order, such
information as is so specified, being information that the person has
possession of or access to;
(d) an order requiring the person to
publish, at the person’s expense and in the way specified in the order, an
advertisement in the terms specified in, or determined in accordance with, the
order.
Note: The following are examples of orders that the
court may make under subsection (2)(a):
(a) an order requiring a person who has made false
representations to make available a training video which explains advertising
obligations under this Schedule;
(b) an order requiring a person who has engaged in
misleading or deceptive conduct in relation to a product to carry out a
community awareness program to address the needs of consumers when purchasing
the product.
(3) This section does not limit a court’s
powers under any other provision of this Schedule.
247
Adverse publicity orders
(1) A court may, on application of the
regulator, make an adverse publicity order in relation to a person who:
(a) has contravened a provision of
Part 2‑2 or Chapter 3; or
(b) has committed an offence against
Chapter 4.
(2) An adverse publicity order
in relation to a person is an order that requires the person:
(a) to disclose, in the way and to the
persons specified in the order, such information as is so specified, being
information that the person has possession of or access to; and
(b) to publish, at the person’s
expense and in the way specified in the order, an advertisement in the terms
specified in, or determined in accordance with, the order.
(3) This section does not limit a court’s
powers under any other provision of this Schedule.
248
Order disqualifying a person from managing corporations
(1) A court may, on application of the
regulator, make an order disqualifying a person from managing corporations for
a period that the court considers appropriate if:
(a) the court is satisfied that the
person has contravened, has attempted to contravene or has been involved in a
contravention of any of the following provisions:
(i) a provision of Part 2‑2
(which is about unconscionable conduct);
(ii) a provision of Part 3‑1
(which is about unfair practices);
(iii) a provision (other
than section 85) of Division 2 of Part 3‑2 (which is about
unsolicited consumer agreements);
(iv) section 106(1),
(2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2), 125(4),
127(1) or (2), 128(2) or (6), 131(1) or 132(1) (which are about safety of
consumer goods and product related services);
(v) section 136(1),
(2) or (3) or 137(1) or (2) (which are about information standards);
(vi) a provision of Chapter 4
(which is about offences); and
(b) the court is satisfied that the
disqualification is justified.
Note: Section 206EA of the Corporations Act
2001 provides that a person is disqualified from managing corporations if a
court order is in force under this section. That Act contains various
consequences for persons so disqualified.
(2) In determining under subsection (1)
whether the disqualification is justified, the court may have regard to:
(a) the person’s conduct in relation
to the management, business or property of any corporation; and
(b) any other matters that the court considers
appropriate.
(3) If the court makes an order under subsection (1),
the regulator must:
(a) notify ASIC; and
(b) give ASIC a copy of any such
order.
Note: ASIC must keep a register of persons who have
been disqualified from managing corporations: see section 1274AA of the Corporations
Act 2001.
(4) For the purposes of this Schedule (other
than this section or section 249), an order under this section is not a
penalty.
249
Privilege against exposure to penalty or forfeiture—disqualification from
managing corporations
(1) In a civil or criminal proceeding under,
or arising out of, this Schedule, a person is not entitled to refuse or fail to
comply with a requirement:
(a) to answer a question or give
information; or
(b) to produce a document or any other
thing; or
(c) to do any other act;
on the ground that the answer or information, production
of the document or other thing, or doing that other act, as the case may be,
might tend to expose the person to a penalty (including forfeiture) by way of
an order under section 248.
(2) Subsection (1) applies whether or
not the person is a defendant in the proceeding or in any other proceeding.
(3) A person is not entitled to refuse or
fail to comply with a requirement under this Schedule:
(a) to answer a question or give
information; or
(b) to produce a document or any other
thing; or
(c) to do any other act;
on the ground that the answer or information, production
of the document or other thing, or doing that other act, as the case may be,
might tend to expose the person to a penalty (including forfeiture) by way of
an order under section 248.
250
Declarations relating to consumer contracts
(1) A court may, on the application of a
party to a consumer contract or on the application of the regulator, declare
that a term of such a contract is an unfair term.
(2) Subsection (1) does not apply unless
the consumer contract is a standard form contract.
(3) Subsection (1) does not limit any
other power of the court to make declarations.
Division 6—Defences
251
Publication of advertisement in the ordinary course of business
(1) This section applies to a proceeding
under this Part in relation to a contravention of a provision of Part 2‑1
or 2‑2 or Chapter 3 if the contravention was committed by the publication
of an advertisement.
(2) In the proceeding, it is a defence if the
defendant proves that:
(a) the defendant is a person whose
business it is to publish or arrange for the publication of advertisements; and
(b) the defendant received the
advertisement for publication in the ordinary course of business; and
(c) the defendant did not know, and
had no reason to suspect, that its publication would amount to a contravention
of such a provision.
252
Supplying consumer goods for the purpose of re‑supply
(1) This section applies to a proceeding
under this Part in relation to a contravention of a provision of Part 2‑1
or 2‑2 or Chapter 3 committed by:
(a) the supplying of consumer goods
that did not comply with a safety standard for such goods; or
(b) the supplying of consumer goods by
a supplier who did not comply with an information standard for such goods.
(2) In the proceeding, it is a defence if the
defendant proves that:
(a) the consumer goods were acquired
by the defendant for the purpose of re‑supply; and
(b) the consumer goods were so
acquired from a person who carried on in Australia a business of supplying such
goods otherwise than as the agent of a person outside Australia; and
(c) either:
(i) the defendant did not
know, and could not with reasonable diligence have ascertained, that the
consumer goods did not comply with that safety standard, or that the defendant
had not complied with that information standard, as the case may be; or
(ii) the defendant relied
in good faith on a representation by the person from whom the defendant
acquired the goods that there was no safety standard or information standard,
as the case may be, for such consumer goods.
(3) A defendant is not entitled to rely on
the defence provided by subsection (2) unless:
(a) the court gives leave; or
(b) the defendant has, not later than
7 days before the day on which the hearing of the proceeding commences, served
on the person who instituted the proceeding a written notice identifying the
person from whom the defendant acquired the consumer goods.
253 Supplying
product related services for the purpose of re‑supply
(1) This section applies to a proceeding
under this Part in relation to a contravention of a provision of Part 2‑1
or 2‑2 or Chapter 3 committed by:
(a) the supplying of product related
services that did not comply with a safety standard for such services; or
(b) the supplying of product related
services by a supplier who did not comply with an information standard for such
services.
(2) In the proceeding, it is a defence if the
defendant proves that:
(a) the product related services were
acquired by the defendant for the purpose of re‑supply; and
(b) the product related services were
so acquired from a person who carried on in Australia a business of supplying
such services otherwise than as the agent of a person outside Australia; and
(c) either:
(i) the defendant did not
know, and could not with reasonable diligence have ascertained, that the
product related services did not comply with that safety standard, or that the
defendant had not complied with that information standard, as the case may be;
or
(ii) the defendant relied
in good faith on a representation by the person from whom the defendant
acquired the goods that there was no safety standard or information standard,
as the case may be, for such product related services.
(3) A defendant is not entitled to rely on
the defence provided by subsection (2) unless:
(a) the court gives leave; or
(b) the defendant has, not later than
7 days before the day on which the hearing of the proceeding commences, served
on the person who instituted the proceeding a written notice identifying the
person from whom the defendant acquired the product related services.
Part 5‑3—Country of origin
representations
254
Overview
This Part provides that certain country
of origin representations made about goods do not contravene:
(a) section 18 (which deals with
misleading or deceptive conduct); or
(b) section 29(1)(a) or (k) or 151(1)(a)
or (k) (which deal with false or misleading representations).
255
Country of origin representations do not contravene certain provisions
(1) A person does not contravene section 18,
29(1)(a) or (k) or 151(1)(a) or (k) only by making a representation of a kind
referred to in an item in the first column of this table, if the requirements
of the corresponding item in the second column are met.
|
Country of origin
representations
|
|
Item
|
Representation
|
Requirements to be met
|
|
1
|
A representation as to the country of origin of goods
|
(a) the goods have been substantially transformed in that
country; and
(b) 50% or more of the total cost of producing or
manufacturing the goods as worked out under section 256 is attributable
to production or manufacturing processes that occurred in that country; and
(c) the representation is not a representation to which item 2
or 3 of this table applies.
|
|
2
|
A representation that goods are the produce of a
particular country
|
(a) the country was the country of origin of each significant
ingredient or significant component of the goods; and
(b) all, or virtually all, processes involved in the
production or manufacture happened in that country.
|
|
3
|
A representation as to the country of origin of goods by
means of a logo specified in the regulations
|
(a) the goods have been substantially transformed in the
country represented by the logo as the country of origin of the goods; and
(b) the prescribed percentage of the cost of producing or
manufacturing the goods as worked out under section 256 is attributable
to production or manufacturing processes that happened in that country.
|
|
4
|
A representation that goods were grown in a particular
country
|
(a) the country is the country that could, but for subsection (2),
be represented, in accordance with this Part, as the country of origin of the
goods, or the country of which the goods are the produce; and
(b) each significant ingredient or significant component of
the goods was grown in that country; and
(c) all, or virtually all, processes involved in the
production or manufacture happened in that country.
|
|
5
|
A representation that ingredients or components of goods
were grown in a particular country
|
(a) the country is the country that could, but for subsection (2),
be represented, in accordance with this Part, as the country of origin of the
goods, or the country of which the goods are the produce; and
(b) each ingredient or component that is claimed to be grown
in that country was grown only in that country; and
(c) each ingredient or component that is claimed to be grown
in that country was processed only in that country; and
(d) 50% or more of the total weight of the goods is comprised
of ingredients or components that were grown and processed only in that
country.
|
Note: The regulations may prescribe rules for
determining the percentage of the total costs of production or manufacture of
goods attributable to production or manufacturing processes that occurred in a
particular country, see section 257.
(2) Despite subsection (1), this section
does not apply to a representation of a kind referred to in item 4 or 5 in
the first column of the table in that subsection if the representation is made
together with another representation of a kind referred to in item 1 or 2
in that first column.
(3) Goods are substantially transformed
in a country if they undergo a fundamental change in that country in form,
appearance or nature such that the goods existing after the change are new and
different goods from those existing before the change.
(4) Without limiting subsection (3), the
regulations:
(a) may prescribe changes (whether in
relation to particular classes of goods or otherwise) that are not fundamental
changes for the purposes of that subsection; and
(b) may include examples (in relation
to particular classes of goods or otherwise) of changes which are fundamental
changes for the purposes of that subsection.
(5) Item 2 of the table in subsection (1)
applies to a representation that goods are the produce of a particular country
whether the representation uses the words “product of”, “produce of” or any
other grammatical variation of the word “produce”.
(6) The regulations made for the purposes of
item 3 of the table in subsection (1) may, in relation to a specified
logo, prescribe a percentage in the range of 51% to 100% as the percentage
applicable to goods for the purposes of paragraph (b) in the second column
of that item.
(7) Goods, or ingredients or components of
goods, are grown in a country if they:
(a) are materially increased in size
or materially altered in substance in that country by natural development; or
(b) germinated or otherwise arose in,
or issued in, that country; or
(c) are harvested, extracted or
otherwise derived from an organism that has been materially increased in size,
or materially altered in substance, in that country by natural development.
(8) For the purposes of items 4 and 5 in
the table in subsection (1) in relation to particular goods:
(a) packaging materials are not
treated as ingredients or components of the goods; and
(b) disregard the weight of packaging
materials in working out the weight of the goods.
(9) For the purposes of items 4 and 5 in
the table in subsection (1) in relation to an ingredient or component that
has been dried or concentrated by the evaporation of water, and to which water
has been added to return the water content of the ingredient or component to no
more than its natural level:
(a) the weight of the water so added
is included in the weight of the ingredient or component; and
(b) the water so added is treated as
having the same origin as the ingredient or component, regardless of its actual
origin.
256
Cost of producing or manufacturing goods
(1) The cost of producing or manufacturing
goods is worked out, for the purposes of section 255, by adding up the
following amounts:
(a) the amount of expenditure on
materials in respect of the goods;
(b) the amount of expenditure on
labour in respect of the goods;
(c) the amount of expenditure on
overheads in respect of the goods;
each worked out in accordance with this table:
|
Cost of producing or
manufacturing goods
|
|
Item
|
This amount of
expenditure:
|
is worked out as
follows:
|
|
1
|
Expenditure on materials in respect of the goods
|
The cost of materials used in the production or
manufacture of the goods:
(a) that is incurred by the manufacturer of the goods; and
(b) that has not been prescribed by regulations made for the
purposes of subsection (2)(a).
|
|
2
|
Expenditure on labour in respect of the goods
|
The sum of each labour cost:
(a) that is incurred by the manufacturer of the goods; and
(b) that relates to the production or manufacture of the
goods; and
(c) that can reasonably be allocated to the production or
manufacture of the goods; and
(d) that has not been prescribed by regulations made for the
purposes of subsection (2)(b).
|
|
3
|
Expenditure on overheads in respect of the goods
|
The sum of each overhead cost:
(a) that is incurred by the manufacturer of the goods; and
(b) that relates to the production or manufacture of the
goods; and
(c) that can reasonably be allocated to the production or
manufacture of the goods; and
(d) that has not been prescribed by regulations made for the
purposes of subsection (2)(c).
|
(2) The regulations may, for the purposes of subsection (1),
prescribe that:
(a) the cost of a particular material,
or a part of such a cost; or
(b) a particular labour cost, or a
part of a labour cost; or
(c) a particular overhead cost, or a
part of an overhead cost;
is not allowable in respect of goods, or classes of goods.
(3) The regulations may, for the purposes of subsection (1),
prescribe the manner of working out:
(a) the cost of a material, or part of
the cost; or
(b) a labour cost, or part of the
cost; or
(c) an overhead cost, or part of the
cost.
257
Rules for determining the percentage of costs of production or manufacture
attributable to a country
(1) Subject to subsection (2), the
regulations may prescribe rules for determining, for the purposes of section 255,
the percentage of the total cost of production or manufacture of goods
attributable to production or manufacturing processes that occurred in a
particular country.
(2) Rules prescribed under subsection (1)
must not discriminate (whether favourably or unfavourably) between countries or
classes of countries.
258
Proceedings relating to false, misleading or deceptive conduct or
representations
If:
(a) proceedings are brought against a
person in respect of section 18, 29(1)(a) or (k) or 151(1)(a) or (k); and
(b) the person seeks to rely on a
provision of this Part, or of a regulation made for the purposes of a provision
of this Part, in the proceedings;
the person bears an evidential burden in relation to the
matters set out in the provision on which the person seeks to rely.
Part 5‑4—Remedies relating
to guarantees
Division 1—Action against
suppliers
Subdivision A—Action against suppliers of goods
259
Action against suppliers of goods
(1) A consumer may take action under this
section if:
(a) a person (the supplier)
supplies, in trade or commerce, goods to the consumer; and
(b) a guarantee that applies to the
supply under Subdivision A of Division 1 of Part 3‑2 (other
than sections 58 and 59(1)) is not complied with.
(2) If the failure to comply with the
guarantee can be remedied and is not a major failure:
(a) the consumer may require the
supplier to remedy the failure within a reasonable time; or
(b) if such a requirement is made of
the supplier but the supplier refuses or fails to comply with the requirement,
or fails to comply with the requirement within a reasonable time—the consumer
may:
(i) otherwise have the
failure remedied and, by action against the supplier, recover all reasonable
costs incurred by the consumer in having the failure so remedied; or
(ii) subject to section 262,
notify the supplier that the consumer rejects the goods and of the ground or
grounds for the rejection.
(3) If the failure to comply with the
guarantee cannot be remedied or is a major failure, the consumer may:
(a) subject to section 262,
notify the supplier that the consumer rejects the goods and of the ground or
grounds for the rejection; or
(b) by action against the supplier,
recover compensation for any reduction in the value of the goods below the
price paid or payable by the consumer for the goods.
(4) The consumer may, by action against the
supplier, recover damages for any loss or damage suffered by the consumer
because of the failure to comply with the guarantee if it was reasonably
foreseeable that the consumer would suffer such loss or damage as a result of
such a failure.
(5) Subsection (4) does not apply if the
failure to comply with the guarantee occurred only because of a cause
independent of human control that occurred after the goods left the control of
the supplier.
(6) To avoid doubt, subsection (4)
applies in addition to subsections (2) and (3).
(7) The consumer may take action under this
section whether or not the goods are in their original packaging.
260
When a failure to comply with a guarantee is a major failure
A failure to comply with a guarantee
referred to in section 259(1)(b) that applies to a supply of goods is a major
failure if:
(a) the goods would not have been
acquired by a reasonable consumer fully acquainted with the nature and extent
of the failure; or
(b) the goods depart in one or more
significant respects:
(i) if they were supplied
by description—from that description; or
(ii) if they were supplied
by reference to a sample or demonstration model—from that sample or
demonstration model; or
(c) the goods are substantially unfit
for a purpose for which goods of the same kind are commonly supplied and they
cannot, easily and within a reasonable time, be remedied to make them fit for
such a purpose; or
(d) the goods are unfit for a
disclosed purpose that was made known to:
(i) the supplier of the
goods; or
(ii) a person by whom any
prior negotiations or arrangements in relation to the acquisition of the goods
were conducted or made;
and they cannot, easily and
within a reasonable time, be remedied to make them fit for such a purpose; or
(e) the goods are not of acceptable
quality because they are unsafe.
261
How suppliers may remedy a failure to comply with a guarantee
If, under section 259(2)(a), a
consumer requires a supplier of goods to remedy a failure to comply with a
guarantee referred to in section 259(1)(b), the supplier may comply with
the requirement:
(a) if the failure relates to title—by
curing any defect in title; or
(b) if the failure does not relate to
title—by repairing the goods; or
(c) by replacing the goods with goods
of an identical type; or
(d) by refunding:
(i) any money paid by the
consumer for the goods; and
(ii) an amount that is
equal to the value of any other consideration provided by the consumer for the
goods.
262
When consumers are not entitled to reject goods
(1) A consumer is not entitled, under section 259,
to notify a supplier of goods that the consumer rejects the goods if:
(a) the rejection period for the goods
has ended; or
(b) the goods have been lost,
destroyed or disposed of by the consumer; or
(c) the goods were damaged after being
delivered to the consumer for reasons not related to their state or condition
at the time of supply; or
(d) the goods have been attached to, or
incorporated in, any real or personal property and they cannot be detached or
isolated without damaging them.
(2) The rejection period for
goods is the period from the time of the supply of the goods to the consumer
within which it would be reasonable to expect the relevant failure to comply
with a guarantee referred to in section 259(1)(b) to become apparent
having regard to:
(a) the type of goods; and
(b) the use to which a consumer is
likely to put them; and
(c) the length of time for which it is
reasonable for them to be used; and
(d) the amount of use to which it is
reasonable for them to be put before such a failure becomes apparent.
263
Consequences of rejecting goods
(1) This section applies if, under section 259,
a consumer notifies a supplier of goods that the consumer rejects the goods.
(2) The consumer must return the goods to the
supplier unless:
(a) the goods have already been
returned to, or retrieved by, the supplier; or
(b) the goods cannot be returned,
removed or transported without significant cost to the consumer because of:
(i) the nature of the
failure to comply with the guarantee to which the rejection relates; or
(ii) the size or height, or
method of attachment, of the goods.
(3) If subsection (2)(b) applies, the
supplier must, within a reasonable time, collect the goods at the supplier’s
expense.
(4) The supplier must, in accordance with an
election made by the consumer:
(a) refund:
(i) any money paid by the
consumer for the goods; and
(ii) an amount that is
equal to the value of any other consideration provided by the consumer for the
goods; or
(b) replace the rejected goods with
goods of the same type, and of similar value, if such goods are reasonably
available to the supplier.
(5) The supplier cannot satisfy subsection (4)(a)
by permitting the consumer to acquire goods from the supplier.
(6) If the property in the rejected goods had
passed to the consumer before the rejection was notified, the property in those
goods revests in the supplier on the notification of the rejection.
264
Replaced goods
If the goods are replaced under section 261(c)
or 263(4)(b):
(a) the replacement goods are taken,
for the purposes of Division 1 of Part 3‑2 and this Part, to be
supplied by the supplier; and
(b) the provisions of Division 1
of Part 3‑2 and this Part apply in relation to the replacement
goods.
265
Termination of contracts for the supply of services that are connected with
rejected goods
(1) If:
(a) under section 259, a consumer
notifies a supplier of goods that the consumer rejects the goods; and
(b) the supplier is required under
section 263(4)(a) to give the consumer a refund; and
(c) a person supplies, in trade or
commerce, services to the consumer that are connected with the rejected goods;
the consumer may terminate the contract for the supply of
the services.
(2) The termination takes effect:
(a) at the time the termination is
made known to the supplier of the services (whether by words or by conduct
indicating the consumer’s intention to terminate the contract); or
(b) if it is not reasonably
practicable to communicate with the supplier of the services—at the time the
consumer indicates, by means which are reasonable in the circumstances, his or
her intention to terminate the contract.
(3) The consumer is entitled to recover, by
action against the supplier of the services, a refund of:
(a) any money paid by the consumer for
the services; and
(b) an amount that is equal to the
value of any other consideration provided by the consumer for the services;
to the extent that the consumer has not already consumed
the services at the time the termination takes effect.
266
Rights of gift recipients
If a consumer acquires goods from a
supplier and gives them to another person as a gift, the other person may,
subject to any defence which would be available to the supplier against the
consumer:
(a) exercise any rights or remedies
under this Subdivision which would be available to the other person if he or
she had acquired the goods from the supplier; and
(b) any reference in this Subdivision
to a consumer includes a reference to the other person accordingly.
Subdivision B—Action against suppliers of services
267
Action against suppliers of services
(1) A consumer may take action under this
section if:
(a) a person (the supplier)
supplies, in trade or commerce, services to the consumer; and
(b) a guarantee that applies to the
supply under Subdivision B of Division 1 of Part 3‑2 is not
complied with; and
(c) unless the guarantee is the
guarantee under section 60—the failure to comply with the guarantee did
not occur only because of:
(i) an act, default or
omission of, or a representation made by, any person other than the supplier,
or an agent or employee of the supplier; or
(ii) a cause independent of
human control that occurred after the services were supplied.
(2) If the failure to comply with the
guarantee can be remedied and is not a major failure:
(a) the consumer may require the
supplier to remedy the failure within a reasonable time; or
(b) if such a requirement is made of
the supplier but the supplier refuses or fails to comply with the requirement,
or fails to comply with the requirement within a reasonable time—the consumer
may:
(i) otherwise have the
failure remedied and, by action against the supplier, recover all reasonable
costs incurred by the consumer in having the failure so remedied; or
(ii) terminate the contract
for the supply of the services.
(3) If the failure to comply with the
guarantee cannot be remedied or is a major failure, the consumer may:
(a) terminate the contract for the
supply of the services; or
(b) by action against the supplier,
recover compensation for any reduction in the value of the services below the
price paid or payable by the consumer for the services.
(4) The consumer may, by action against the
supplier, recover damages for any loss or damage suffered by the consumer
because of the failure to comply with the guarantee if it was reasonably
foreseeable that the consumer would suffer such loss or damage as a result of
such a failure.
(5) To avoid doubt, subsection (4)
applies in addition to subsections (2) and (3).
268
When a failure to comply with a guarantee is a major failure
A failure to comply with a guarantee
referred to in section 267(1)(b) that applies to a supply of services is a
major failure if:
(a) the services would not have been
acquired by a reasonable consumer fully acquainted with the nature and extent
of the failure; or
(b) the services are substantially
unfit for a purpose for which services of the same kind are commonly supplied
and they cannot, easily and within a reasonable time, be remedied to make them
fit for such a purpose; or
(c) both of the following apply:
(i) the services, and any
product resulting from the services, are unfit for a particular purpose for
which the services were acquired by the consumer that was made known to the
supplier of the services;
(ii) the services, and any
of those products, cannot, easily and within a reasonable time, be remedied to
make them fit for such a purpose; or
(d) both of the following apply:
(i) the services, and any
product resulting from the services, are not of such a nature, or quality,
state or condition, that they might reasonably be expected to achieve a result
desired by the consumer that was made known to the supplier;
(ii) the services, and any
of those products, cannot, easily and within a reasonable time, be remedied to
achieve such a result; or
(e) the supply of the services creates
an unsafe situation.
269
Termination of contracts for the supply of services
(1) This section applies if, under section 267,
a consumer terminates a contract for the supply of services.
(2) The termination takes effect:
(a) at the time the termination is
made known to the supplier of the services (whether by words or by conduct
indicating the consumer’s intention to terminate the contract); or
(b) if it is not reasonably
practicable to communicate with the supplier of the services—at the time the
consumer indicates, by means which are reasonable in the circumstances, his or
her intention to terminate the contract.
(3) The consumer is entitled to recover, by
action against the supplier of the services, a refund of:
(a) any money paid by the consumer for
the services; and
(b) an amount that is equal to the
value of any other consideration provided by the consumer for the services;
to the extent that the consumer has not already consumed
the services at the time the termination takes effect.
270
Termination of contracts for the supply of goods that are connected with
terminated services
(1) If:
(a) under section 267, a consumer
terminates a contract for the supply of services; and
(b) a person (the supplier)
has supplied, in trade or commerce, goods to the consumer that are connected
with the services;
then:
(c) the consumer is taken to have
rejected the goods at the time the termination of the contract takes effect;
and
(d) the consumer must return the goods
to the supplier of the goods unless:
(i) the goods have already
been returned to, or retrieved by, the supplier; or
(ii) the goods cannot be
returned, removed or transported without significant cost to the consumer
because of the nature of the failure to comply with the guarantee to which the
rejection relates, or because of the size or height, or method of attachment,
of the goods; and
(e) the supplier must refund:
(i) any money paid by the
consumer for the goods; and
(ii) an amount that is
equal to the value of any other consideration provided by the consumer for the
goods.
(2) If subsection (1)(d)(ii) applies,
the supplier must collect the goods at the supplier’s expense.
Division 2—Action for damages
against manufacturers of goods
271
Action for damages against manufacturers of goods
(1) If:
(a) the guarantee under section 54
applies to a supply of goods to a consumer; and
(b) the guarantee is not complied with;
an affected person in relation to the goods may, by action
against the manufacturer of the goods, recover damages from the manufacturer.
(2) Subsection (1) does not apply if the
guarantee under section 54 is not complied with only because of:
(a) an act, default or omission of, or
any representation made by, any person other than the manufacturer or an
employee or agent of the manufacturer; or
(b) a cause independent of human
control that occurred after the goods left the control of the manufacturer; or
(c) the fact that the price charged by
the supplier was higher than the manufacturer’s recommended retail price, or
the average retail price, for the goods.
(3) If:
(a) a person supplies, in trade or
commerce, goods by description to a consumer; and
(b) the description was applied to the
goods by or on behalf of the manufacturer of the goods, or with express or
implied consent of the manufacturer; and
(c) the guarantee under section 56
applies to the supply and it is not complied with;
an affected person in relation to the goods may, by action
against the manufacturer of the goods, recover damages from the manufacturer.
(4) Subsection (3) does not apply if the
guarantee under section 56 is not complied with only because of:
(a) an act, default or omission of any
person other than the manufacturer or an employee or agent of the manufacturer;
or
(b) a cause independent of human
control that occurred after the goods left the control of the manufacturer.
(5) If:
(a) the guarantee under section 58
or 59(1) applies to a supply of goods to a consumer; and
(b) the guarantee is not complied
with;
an affected person in relation to the goods may, by action
against the manufacturer of the goods, recover damages from the manufacturer.
(6) If an affected person in relation to
goods has, in accordance with an express warranty given or made by the
manufacturer of the goods, required the manufacturer to remedy a failure to
comply with a guarantee referred to in subsection (1), (3) or (5):
(a) by repairing the goods; or
(b) by replacing the goods with goods
of an identical type;
then, despite that subsection, the affected person is not
entitled to commence an action under that subsection to recover damages of a
kind referred to in section 272(1)(a) unless the manufacturer has refused
or failed to remedy the failure, or has failed to remedy the failure within a
reasonable time.
(7) The affected person in relation to the
goods may commence an action under this section whether or not the goods are in
their original packaging.
272
Damages that may be recovered by action against manufacturers of goods
(1) In an action for damages under this Division,
an affected person in relation to goods is entitled to recover damages for:
(a) any reduction in the value of the
goods, resulting from the failure to comply with the guarantee to which the
action relates, below whichever of the following prices is lower:
(i) the price paid or
payable by the consumer for the goods;
(ii) the average retail
price of the goods at the time of supply; and
(b) any loss or damage suffered by the
affected person because of the failure to comply with the guarantee to which
the action relates if it was reasonably foreseeable that the affected person
would suffer such loss or damage as a result of such a failure.
(2) Without limiting subsection (1)(b),
the cost of inspecting and returning the goods to the manufacturer is taken to
be a reasonably foreseeable loss suffered by the affected person as a result of
the failure to comply with the guarantee.
(3) Subsection (1)(b) does not apply to
loss or damage suffered through a reduction in the value of the goods.
273
Time limit for actions against manufacturers of goods
An affected person may commence an
action for damages under this Division at any time within 3 years after the day
on which the affected person first became aware, or ought reasonably to have
become aware, that the guarantee to which the action relates has not been
complied with.
Division 3—Miscellaneous
274
Indemnification of suppliers by manufacturers
(1) A manufacturer of goods is liable to
indemnify a person (the supplier) who supplies the goods to a
consumer if:
(a) the supplier is liable to pay
damages under section 259(4) to the consumer for loss or damage suffered
by the consumer; and
(b) the manufacturer is or would be
liable under section 271 to pay damages to the consumer for the same loss
or damage.
(2) Without limiting subsection (1), a
manufacturer of goods is liable to indemnify a person (the supplier)
who supplies the goods to a consumer if:
(a) the supplier incurs costs because
the supplier is liable under this Part for a failure to comply with a guarantee
that applies to the supply under Subdivision A of Division 1 of Part 3‑2;
and
(b) the failure is:
(i) a failure to comply
with the guarantee under section 54; or
(ii) a failure to comply
with the guarantee under section 55 in relation to a disclosed purpose
that the consumer made known to the manufacturer either directly or through the
supplier or the person referred to in section 55(2)(a)(ii); or
(iii) a failure to comply
with the guarantee under section 56 in relation to a description that was
applied to the goods by or on behalf of the manufacturer of the goods, or with
the express or implied consent of the manufacturer.
(3) The supplier may, with respect to the
manufacturer’s liability to indemnify the supplier, commence an action against
the manufacturer in a court of competent jurisdiction for such legal or
equitable relief as the supplier could have obtained if that liability had
arisen under a contract of indemnity made between them.
(4) The supplier may commence the action at
any time within 3 years after the earliest of the following days:
(a) the day, or the first day, as the
case may be, on which the supplier made a payment with respect to, or otherwise
discharged in whole or in part, the liability of the supplier to the consumer;
(b) the day on which a proceeding was
commenced by the consumer against the supplier with respect to that liability
or, if more than one such proceeding was commenced, the day on which the first
such proceeding was commenced.
275
Limitation of liability etc.
If:
(a) there is a failure to comply with
a guarantee that applies to a supply of services under Subdivision B of
Division 1 of Part 3‑2; and
(b) the law of a State or a Territory
is the proper law of the contract;
that law applies to limit or preclude liability for the
failure, and recovery of that liability (if any), in the same way as it applies
to limit or preclude liability, and recovery of any liability, for a breach of
a term of the contract for the supply of the services.
276
This Part not to be excluded etc. by contract
(1) A term of a contract (including a term
that is not set out in the contract but is incorporated in the contract by
another term of the contract) is void to the extent that the term purports to
exclude, restrict or modify, or has the effect of excluding, restricting or
modifying:
(a) the application of all or any of
the provisions of this Part; or
(b) the exercise of a right a
conferred by such a provision; or
(c) any liability of a person in
relation to a failure to comply with a guarantee that applies under Division 1
of Part 3‑2 to a supply of goods or services.
(2) A term of a contract is not taken, for
the purposes of this section, to exclude, restrict or modify the application of
a provision of this Part unless the term does so expressly or is inconsistent
with the provision.
(3) This section does not apply to a term of
a contract that is a term referred to in section 276A(4).
276A
Limitation in certain circumstances of liability of manufacturer to seller
(1) Despite section 274, if goods are
not of a kind ordinarily acquired for personal, domestic or household use or
consumption, the liability under that section of the manufacturer of the goods
to a person (the supplier) who supplied the goods to a consumer
is limited to a liability to pay to the supplier an amount equal to:
(a) the cost of replacing the goods;
or
(b) the cost of obtaining equivalent
goods; or
(c) the
cost of having the goods repaired;
whichever is the lowest amount.
(2) Subsection (1) does not apply in
relation to particular goods if the supplier establishes that it is not fair or
reasonable for the liability of the manufacturer of the goods to be limited as
mentioned in subsection (1).
(3) In determining for the purposes of
subsection (2) whether or not it is fair or reasonable for the liability
of a manufacturer to a supplier in relation to goods to be limited as mentioned
in subsection (1), a court is to have regard to all the circumstances of
the case, and in particular to the following matters:
(a) the availability of suitable
alternative sources of supply of the goods;
(b) the availability of equivalent
goods;
(c) whether the goods were
manufactured, processed or adapted to the special order of the supplier.
(4) This section is subject to any term of a
contract between the manufacturer and the supplier imposing on the manufacturer
a greater liability than the liability mentioned in subsection (1).
277
Representative actions by the regulator
(1) The regulator may, by application,
commence an action under this Part on behalf of one or more persons identified
in the application who are entitled under this Part to take the action.
(2) The regulator may only make the
application if it has obtained the written consent of the person, or each of
the persons, on whose behalf the application is being made.
Part 5‑5—Liability of
suppliers and credit providers
Division 1—Linked credit
contracts
278
Liability of suppliers and linked credit providers relating to linked credit
contracts
(1) If a consumer who is a party to a linked
credit contract suffers loss or damage as a result of:
(a) a misrepresentation relating to
the credit provided under that linked credit contract, or to a supply of goods
or services (a related supply) to which that contract relates; or
(b) a breach of the linked credit
contract, or of a contract for a related supply; or
(c) the failure of consideration in
relation to the linked credit contract, or to a contract for a related supply;
or
(d) a failure to comply with a
guarantee that applies, under section 54, 55, 56, 57, 60, 61 or 62, in
relation to a related supply; or
(e) a breach of a warranty that is
implied in the linked credit contract by section 12ED of the Australian
Securities and Investments Commission Act 2001;
the linked credit provider who is a party to the contract,
and the supplier of a related supply, are jointly and severally liable to the
consumer for the amount of the loss or damage.
(2) A linked credit contract is
a contract that a consumer enters into with a linked credit provider of a
person (the supplier) for the provision of credit in relation to:
(a) the supply by way of sale, lease,
hire or hire‑purchase of goods to the consumer by the linked credit
provider where the supplier supplies the goods, or causes the goods to be
supplied, to the linked credit provider; or
(b) the supply by the supplier of goods
or services, or goods and services, to the consumer.
279
Action by consumer to recover amount of loss or damage
(1) If a linked credit provider, and a
supplier of the goods or services, are liable under section 278 to a
consumer for an amount of loss or damage, the consumer may recover the amount
by action in a court of competent jurisdiction.
(2) The consumer must bring the action
against the linked credit provider and the supplier jointly.
(3) Subsection (2) does not apply if:
(a) the supplier has been dissolved or
the winding up of the supplier has commenced; or
(b) both of the following apply:
(i) in the opinion of the
court in which the action is taken, it is not reasonably likely that a judgment
obtained against the supplier would be satisfied;
(ii) that court has, on the
application of the consumer, declared that that subsection does not apply in
relation to the proceedings.
280
Cases where a linked credit provider is not liable
(1) In joint liability proceedings, a linked
credit provider is not liable to a consumer under section 278 if the
linked credit provider establishes that:
(a) the credit provided by the credit
provider to the consumer was the result of an approach made to the credit
provider by the consumer; and
(b) the approach was not induced by
the supplier of the goods or services to which the linked credit contract
relates.
(2) In joint liability proceedings, a linked
credit provider is not liable to a consumer under section 278 if the
proceedings relate to the supply by way of lease, hire or hire‑purchase
of goods to the consumer by the linked credit provider, and the credit provider
establishes that:
(a) after due inquiry before becoming
a linked credit provider of the supplier of the goods, the credit provider was
satisfied that the reputation of the supplier in respect of the supplier’s
financial standing and business conduct was good; and
(b) after becoming a linked credit
provider of the supplier, the credit provider had not had cause to suspect
that:
(i) the consumer might be
entitled to recover an amount of loss or damage suffered as a result of a
misrepresentation, breach, failure of consideration, failure to comply with a
guarantee, or breach of a warranty, referred to in section 278(1); and
(ii) the supplier might be
unable to meet the supplier’s liabilities as and when they fall due.
(3) In joint liability proceedings, a linked
credit provider is not liable to a consumer under section 278 if the
proceedings relate to a contract of sale in relation to which a tied loan
contract applies and the linked credit provider establishes that:
(a) after due inquiry before becoming
a linked credit provider of the supplier of goods to which the contract
relates, the credit provider was satisfied that the reputation of the supplier
in respect of the supplier’s financial standing and business conduct was good;
and
(b) after becoming a linked credit
provider of the supplier, but before the tied loan contract was entered into,
the linked credit provider had not had cause to suspect that:
(i) the consumer might, if
the tied loan contract was entered into, be entitled to recover an amount of
loss or damage suffered as a result of a misrepresentation, breach, failure of
consideration, failure to comply with a guarantee, or breach of a warranty,
referred to in section 278(1); and
(ii) the supplier might be
unable to meet the supplier’s liabilities as and when they fall due.
(4) In joint liability proceedings, a linked
credit provider is not liable to a consumer under section 278 if:
(a) the proceedings relate to a
contract of sale in relation to which a tied continuing credit contract entered
into by the linked credit provider applies; and
(b) the credit provider establishes
the matter referred to in subsection (5), having regard to:
(i) the nature and volume
of business carried on by the credit provider; and
(ii) such other matters as
appear to be relevant in the circumstances of the case.
(5) The matter for the purposes of subsection (4)
is that the linked credit provider, before first becoming aware of:
(a) the contract of sale referred to
in paragraph (a) of that subsection; or
(b) proposals for the making of such a
contract;
had not had cause to suspect that a person entering into
such a contract with the supplier might be entitled to claim damages against,
or recover a sum of money from, the supplier for a misrepresentation, breach,
failure of consideration, failure to comply with a guarantee, or a breach of a
warranty, referred to in section 278(1).
(6) This section has effect despite section 278(1).
281
Amount of liability of linked credit providers
The liability of a linked credit
provider to a consumer under section 278(1) in relation to a contract
referred to in section 278(1) is limited to an amount that does not exceed
the sum of:
(a) the amount financed under the tied
loan contract, tied continuing credit contract, lease contract, contract of
hire or contract of hire‑purchase; and
(b) the amount of interest (if any),
or damages in the nature of interest, allowed or awarded against the credit
provider by the court in which the action in relation to the liability is
taken; and
(c) the amount of costs (if any)
awarded by that court against the credit provider or supplier, or both.
282
Counter‑claims and offsets
(1) If proceedings in relation to a linked
credit contract are brought against a consumer who is party to the contract by
the linked credit provider who is a party to the contract, the consumer is not
entitled to:
(a) make a counter‑claim in
relation to the credit provider’s liability under section 278(1); or
(b) exercise a right conferred by subsection (3)
of this section in relation to that liability;
unless the consumer claims in the proceedings against the
supplier in respect of the liability, by third‑party proceedings or
otherwise.
(2) Subsection (1) does not apply if:
(a) the supplier has been dissolved or
the winding up of the supplier has commenced; or
(b) both of the following apply:
(i) in the opinion of the
court in which the proceedings are taken, it is not reasonably likely that a
judgment obtained against the supplier would be satisfied;
(ii) that court has, on the
application of the consumer, declared that that subsection does not apply in
relation to the proceedings.
(3) In any proceedings in relation to a
linked credit contract in which the linked credit provider who is a party to
the contract claims damages or an amount of money from a consumer, the consumer
may offset, in whole or in part, the consumer’s liability against any liability
of the credit provider under section 278(1).
283
Enforcement of judgments etc.
(1) If, in joint liability proceedings,
judgment is given against a supplier and a linked credit provider, the judgment
must not be enforced against the credit provider unless a written demand made
on the supplier for satisfaction of the judgment has remained unsatisfied for
at least 30 days.
(2) If the judgment can be enforced against
the linked credit provider, it may only be enforced to the extent of the lesser
of the following amounts:
(a) the amount calculated in
accordance with section 281;
(b) so much of the judgment debt as
has not been satisfied by the supplier.
(3) If, in joint liability proceedings, a
right conferred by section 282(3) is established by a consumer against a
linked credit provider, the consumer must not receive the benefit of the right
unless:
(a) judgment has been given against
the supplier and credit provider; and
(b) a written demand has been made on
the supplier for satisfaction of the judgment; and
(c) the demand has remained
unsatisfied for at least 30 days.
(4) If the consumer can receive the benefit
of a right conferred by section 282(3), the consumer may only receive the
benefit to the extent of the lesser of the following amounts:
(a) the amount calculated in
accordance with section 281;
(b) so much of the judgment debt as
has not been satisfied by the supplier.
(5) Subsections (1) and (3) do not apply
if:
(a) the supplier has been dissolved or
the winding up of the supplier has commenced; or
(b) both of the following apply:
(i) in the opinion of the
court in which the proceedings are taken, it is not reasonably likely that a
judgment obtained against the supplier would be satisfied;
(ii) that court has, on the
application of the consumer, declared that those subsections do not apply in
relation to the proceedings.
(6) If a judgment given in joint liability
proceedings is enforced against a linked credit provider of a supplier, the
credit provider is subrogated to the extent of the enforced judgment to any
rights that the consumer would have had but for the judgment against the
supplier or any other person.
284
Award of interest to consumers
(1) If, in joint liability proceedings,
judgment is given against the following (the defendant) for an
amount of loss or damage:
(a) a supplier and a linked credit
provider;
(b) a linked credit provider;
the court must, on the application of the consumer who
suffered the loss or damage, award interest to the consumer against the
defendant upon the whole or a part of the amount, unless good cause is shown to
the contrary.
(2) The interest must be awarded from the
time when the consumer became entitled to recover the amount until the date on
which the judgment is given, at the greater of the following rates:
(a) if the amount payable by the
consumer to the linked credit provider for obtaining credit in connection with
the goods or services to which the proceedings relate may be calculated at a
percentage rate per annum—that rate or, if more than one such rate may be
calculated, the lower or lowest of those rates;
(b) 8%, or such other rate as is
prescribed by the regulations.
(3) In determining whether good cause is
shown against the awarding of interest under subsection (1), the court
must take into account any payment made into court by the supplier or the
linked credit provider.
(4) This section applies despite any other
law.
285
Liability of suppliers to linked credit providers, and of linked credit
providers to suppliers
(1) If a linked credit provider and supplier
are liable, under section 278, to a consumer who is a party to a linked
credit contract:
(a) if the liability relates to a
supply of goods or services to which the linked credit contract relates—the
supplier is liable to the credit provider for the amount of loss suffered by
the credit provider, unless the supplier and credit provider otherwise agree;
or
(b) if the liability relates to the
linked credit contract—the credit provider is liable to the supplier for the
amount of loss suffered by the supplier, unless the supplier and credit
provider otherwise agree.
(2) The amount for which the supplier is
liable under subsection (1)(a) of this section is an amount not exceeding
the sum of the following amounts:
(a) the maximum amount of the linked
credit provider’s liability under section 281;
(b) unless the court otherwise
determines, the amount of costs (if any) reasonably incurred by the linked
credit provider in defending the joint liability proceedings.
286
Joint liability proceedings and recovery under section 135 of the National
Credit Code
(1) If:
(a) a consumer is seeking, in joint
liability proceedings, to recover an amount under section 279 in relation
to a contract for the supply of goods or services; and
(b) the contract has been rescinded or
discharged (whether under this Schedule or any other law); and
(c) as a result of the contract being
rescinded or discharged, the consumer is entitled under section 135 of the
National Credit Code to terminate a linked credit contract; and
(d) the consumer terminates the linked
credit contract under that section;
the following amounts may be recovered in the joint
liability proceedings (to the extent that they have not been recovered under
section 135 of the National Credit Code):
(e) any amount that the consumer is
entitled under section 135 of the National Credit Code to recover from the
credit provider under the linked credit contract;
(f) any amount that the credit
provider is entitled under section 135 of the National Credit Code to
recover from:
(i) the consumer; or
(ii) if the supplier under
the contract for the supply of goods or services is a party to the joint
liability proceedings—the supplier.
(2) An amount that is recovered under subsection (1)
ceases to be recoverable under section 135 of the National Credit Code.
Division 2—Non‑linked
credit contracts
287
Liability of suppliers and credit providers relating to non‑linked credit
contracts
(1) If a consumer who is a party to a non‑linked
credit contract suffers loss or damage as a result of a failure to comply with
a guarantee that applies, under section 54, 55, 56, 57, 60, 61 or 62, in
relation to a supply to which the contract relates, the credit provider who is
a party to the contract is not under any liability to the consumer for the
amount of the loss or damage.
(2) Subsection (1) does not prevent the
consumer from recovering that amount by action against the supplier of the
goods or services to which the contract relates.
(3) If a consumer who is a party to a non‑linked
credit contract suffers loss or damage as a result of a breach of a warranty
that is implied in the contract by section 12ED of the Australian
Securities and Investments Commission Act 2001, the supplier of the goods
or services to which the contract relates is not under any liability to the
consumer for the amount of the loss or damage.
(4) Subsection (3) does not prevent the
consumer from recovering that amount by action against the credit provider who
is a party to the contract.
(5) A non‑linked credit contract
is a contract that a consumer enters into with a credit provider for the
provision of credit in relation to:
(a) the supply by way of sale, lease,
hire or hire‑purchase of goods to the consumer where:
(i) a person (the supplier)
supplies the goods, or the causes the goods to be supplied, to the credit
provider; and
(ii) the credit provider is
not a linked credit provider of the supplier; and
(iii) prior negotiations or
arrangements in relation to the acquisition of the goods were conducted or made
with the consumer by or on behalf of the supplier; and
(iv) the credit provider did
not take physical possession of the goods before they were delivered to the
consumer; or
(b) the supply of services to the
consumer by a person in relation to whom the credit provider is not a linked
credit provider.
Schedule 2—Application of the Australian Consumer Law
Trade Practices Act 1974
1 Part XI
Repeal the Part, substitute:
Part XI—Application of the Australian Consumer Law as a law of the
Commonwealth
Division 1—Preliminary
130
Definitions
In this Part:
associate: a person (the first person)
is an associate of another person if:
(a) the first person holds money or
other property on behalf of the other person; or
(b) if the other person is a body
corporate—the first person is a wholly‑owned subsidiary (within the
meaning of the Corporations Act 2001) of the other person.
Australian Consumer Law means Schedule 2
as applied under Subdivision A of Division 2 of this Part.
Chairperson has the same meaning as in
subsection 4(1).
corporation has the same meaning as in
subsection 4(1).
disclosure notice: see subsection 133D(3).
embargo notice: see subsection 135S(1).
embargo period for an embargo notice means
the period specified in the embargo notice under paragraph 135S(3)(c) or (d).
enforcement order: see paragraph 139D(1)(b).
Family Court Judge means a Judge of the
Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge
Administrator or a Senior Judge).
Federal Court means the Federal Court of
Australia.
infringement notice means an infringement
notice issued under subsection 134A(1).
infringement notice compliance period: see subsection
134F(1).
infringement notice provision: see subsection
134A(2).
inspector means a person who is appointed as
an inspector under subsection 133(1).
listed corporation has the meaning given by
section 9 of the Corporations Act 2001.
member of the Commission has the same meaning
as in subsection 4(1).
occupational liability: see subsection
137(5).
personal injury includes:
(a) prenatal injury; and
(b) impairment of a person’s physical
or mental condition; and
(c) disease;
but does not include an impairment of a person’s mental
condition unless the impairment consists of a recognised psychiatric illness.
person assisting: see subsection 135D(2).
professional standards law: see subsection
137(4).
proposed ban notice: see subsection 132(1).
proposed recall notice: see subsection
132A(1).
reckless conduct: see subsection 139A(5).
recreational services: see subsection
139A(2).
search‑related powers: see subsections
135A(1) and (2).
search warrant means a warrant issued or
signed under section 135Z or 136.
smoking has the same meaning as in the Tobacco
Advertising Prohibition Act 1992.
state of mind, of a person, includes a
reference to:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
person’s intention, opinion, belief or purpose.
tobacco product has the same meaning as in
the Tobacco Advertising Prohibition Act 1992.
130A
Expressions defined in Schedule 2
An expression has the same meaning in
this Part as in Schedule 2.
Division 2—Application of the Australian Consumer Law as a law of the
Commonwealth
Subdivision A—Application of the Australian Consumer Law
131
Application of the Australian Consumer Law in relation to corporations etc.
(1) Schedule 2 applies as a law of the
Commonwealth to the conduct of corporations, and in relation to contraventions
of Chapter 2, 3 or 4 of Schedule 2 by corporations.
Note: Sections 5 and 6 of this Act extend the
application of this Part (and therefore extend the application of the
Australian Consumer Law as a law of the Commonwealth).
(2) Without limiting subsection (1):
(a) section 22 of Schedule 2
also applies as a law of the Commonwealth in relation to:
(i) a supply or possible
supply of goods or services by any person to a corporation (other than a listed
public company); or
(ii) an acquisition or
possible acquisition of goods or services from any person by a corporation
(other than a listed public company); and
(b) section 147 of Schedule 2
also applies as a law of the Commonwealth to, and in relation to, a corporation
as a supplier referred to in that section; and
(c) Division 2 of Part 5‑1
of Schedule 2 also applies as a law of the Commonwealth to and in relation
to a person if the other person referred to in section 219 of Schedule 2
is a corporation.
(3) The table of contents in Schedule 2
is additional information that is not part of this Act. Information in the
table may be added to or edited in any published version of this Act.
131A
Division does not apply to financial services
(1) Despite section 131, this Division
does not apply (other than in relation to the application of Part 5‑5
of Schedule 2 as a law of the Commonwealth) to the supply, or possible
supply, of services that are financial services, or of financial products.
(2) Without limiting subsection (1):
(a) Part 2‑1 of Schedule 2
and sections 34 and 156 of Schedule 2 do not apply to conduct engaged
in in relation to financial services; and
(b) Part 2‑3 of Schedule 2
does not apply to, or in relation to:
(i) contracts that are
financial products; or
(ii) contracts for the
supply, or possible supply, of services that are financial services; and
(c) if a financial product consists of
or includes an interest in land—the following provisions of Schedule 2 do
not apply to that interest:
(i) section 30;
(ii) paragraphs 32(1)(c)
and (d) and (2)(c) and (d);
(iii) paragraphs 50(1)(c)
and (d);
(iv) section 152;
(v) subparagraphs 154(1)(b)(iii)
and (iv) and (2)(b)(iii) and (iv);
(vi) subparagraphs 168(1)(b)(iii)
and (iv); and
(d) sections 39 and 161 of
Schedule 2 do not apply to:
(i) a credit card that is
part of, or that provides access to, a credit facility that is a financial
product; or
(ii) a debit card that
allows access to an account that is a financial product.
131B
Division does not apply to interim bans imposed by State or Territory Ministers
Despite section 131, this Division
does not apply to an interim ban that is not imposed by the Commonwealth
Minister.
131C
Saving of other laws and remedies
(1) This Part is not intended to exclude or
limit the concurrent operation of any law, whether written or unwritten, of a
State or a Territory.
(2) Section 73 of the Australian
Consumer Law does not operate in a State or a Territory to the extent necessary
to ensure that no inconsistency arises between:
(a) that section; and
(b) a provision of a law of the State
or Territory that would, but for this subsection, be inconsistent with that
section.
(3) Despite subsection (1):
(a) if an act or omission of a person
is both:
(i) an offence against
this Part or the Australian Consumer Law; and
(ii) an offence against a
law of a State or a Territory; and
(b) the person is convicted of either
of those offences;
he or she is not liable to be convicted of the other of
those offences.
(4) Except as expressly provided by this Part
or the Australian Consumer Law, nothing in this Part or the Australian Consumer
Law is taken to limit, restrict or otherwise affect any right or remedy a
person would have had if this Part and the Australian Consumer Law had not been
enacted.
Subdivision B—Effect of other Commonwealth laws on the Australian Consumer
Law
131D
Effect of Part VIB on Chapter 5 of the Australian Consumer Law
Chapter 5 of the Australian
Consumer Law has effect subject to Part VIB.
131E
Application of the Legislative Instruments Act 2003
(1) The following instruments made under the
Australian Consumer Law by the Commonwealth Minister are to be made by
legislative instrument:
(a) a determination under subsection 66(1)
(display notices);
(b) a notice under subsection 104(1)
or 105(1) (safety standards);
(c) a notice under subsection 109(1)
or (2) (interim bans);
(d) a notice under section 111
(extensions of interim bans);
(e) a notice under section 113
(revocation of interim bans);
(f) a notice under subsection 114(1)
or (2) (permanent bans);
(g) a notice under section 117
(revocation of permanent bans);
(h) a notice under subsection 122(1)
(recall notices);
(i) a notice under subsection 134(1)
or 135(1) (information standards).
(2) The following instruments made under the
Australian Consumer Law are not legislative instruments:
(a) an approval given under paragraph 106(5)(b)
(approval to export);
(b) an approval given under paragraph 118(5)(b)
(approval to export);
(c) a notice under subsection 128(3)
(voluntary recalls);
(d) a notice under subsection 129(1)
or (2) (safety warning notices);
(e) a notice under subsection 130(1)
(announcement of results of an investigation);
(f) a notice under subsection 223(1)
or (2) (public warning notices).
(3) To avoid doubt, an instrument made under
the Australian Consumer Law by a responsible Minister who is not the
Commonwealth Minister, or a regulator that is not the Commission, is not a
legislative instrument.
131F
Section 4AB of the Crimes Act does not apply
Section 4AB of the Crimes Act
1914 does not apply to any provision of this Part or the Australian
Consumer Law.
131G
Application of the Criminal Code
Corporate criminal responsibility
(1) Part 2.5 of the Criminal Code
does not apply to an offence against this Part or the Australian Consumer Law.
Mistake of fact defence
(2) Section 9.2 of the Criminal Code
does not apply to an offence against Chapter 4 of the Australian Consumer
Law.
Note: Section 207 of the Australian Consumer
Law provides a mistake of fact defence for offences under Chapter 4 of the
Australian Consumer Law.
Division 3—Conferences for proposed bans and recall notices
Subdivision A—Conference requirements before a ban or compulsory recall
132
Commonwealth Minister must issue a proposed ban notice
(1) The Commonwealth Minister must issue a proposed
ban notice if the Commonwealth Minister proposes to impose an interim
ban, or a permanent ban:
(a) on consumer goods of a particular
kind; or
(b) on product related services of a
particular kind.
(2) Subsection (1) does not apply in
relation to an interim ban if the Commonwealth Minister has issued a notice
under section 132J certifying that the ban should be imposed without
delay.
(3) The proposed ban notice must:
(a) be in writing; and
(b) be published on the internet; and
(c) set out a copy of a draft notice
for the imposition of the interim ban or permanent ban; and
(d) set out a summary of the reasons
for the proposed imposition of the ban; and
(e) invite any person who supplies, or
proposes to supply:
(i) consumer goods of that
kind; or
(ii) product related
services of that kind;
to notify the Commission, in
writing and within a period specified in the notice, if the person wishes the
Commission to hold a conference in relation to the proposed imposition of the
ban.
(4) The period specified in the proposed ban
notice under paragraph (3)(e):
(a) must be a period of at least 10
days, or such longer period as the Commonwealth Minister specifies in the
notice; and
(b) must not commence before the day
on which the notice is published.
(5) A proposed ban notice is not a
legislative instrument.
132A
Commonwealth Minister must issue a proposed recall notice
(1) The Commonwealth Minister must issue a proposed
recall notice if the Commonwealth Minister proposes to issue a recall
notice for consumer goods of a particular kind.
(2) Subsection (1) does not apply in
relation to a recall notice if the Commonwealth Minister has issued a notice
under section 132J certifying that the recall notice should be issued
without delay.
(3) The proposed recall notice must:
(a) be in writing; and
(b) be published on the internet; and
(c) set out a copy of a draft recall
notice; and
(d) set out a summary of the reasons
for the proposed issue of the recall notice; and
(e) invite any person who supplies, or
proposes to supply, consumer goods of that kind to notify the Commission, in
writing and within a period specified in the notice, if the person wishes the
Commission to hold a conference in relation to the proposed issue of the recall
notice.
(4) The period specified in the proposed
recall notice under paragraph (3)(e):
(a) must be a period of at least 10
days, or such longer period as the Commonwealth Minister specifies in the
notice; and
(b) must not commence before the day
on which the notice is published.
(5) A proposed recall notice is not a
legislative instrument.
132B
Commonwealth Minister to be notified if no person wishes a conference to be
held
(1) If no person notifies the Commission in
accordance with a proposed ban notice, or a proposed recall notice, that the
person wishes the Commission to hold a conference, the Commission must, in
writing, notify the Commonwealth Minister of that fact.
(2) A notice under subsection (1) is not
a legislative instrument.
132C
Notification of conference
(1) If one or more persons notify the
Commission in accordance with a proposed ban notice, or a proposed recall
notice, that they wish the Commission to hold a conference, the Commission
must:
(a) appoint a day, time and place for
the holding of the conference; and
(b) give written notice to the
Commonwealth Minister, and to each person who so notified the Commission, of
that day, time and place.
(2) The day appointed must be at least 5
days, but not more than 14 days, after the end of the period:
(a) for a proposed ban
notice—specified under paragraph 132(3)(e); or
(b) for a proposed recall
notice—specified under paragraph 132A(3)(e).
(3) A notice under paragraph (1)(b) is
not a legislative instrument.
132D
Recommendation after conclusion of conference
(1) As soon as is practicable after the
conclusion of a conference held under this Subdivision in relation to the
proposed imposition of an interim ban or permanent ban, the Commission must:
(a) by written notice given to the
Commonwealth Minister, recommend that the Commonwealth Minister:
(i) impose the ban in the
same terms as the draft notice referred to in paragraph 132(3)(c); or
(ii) impose the ban with
such modifications to that notice as are specified by the Commission; or
(iii) not impose the ban;
and
(b) cause a copy of the notice given
under paragraph (a) to be given to each person who was present or
represented at the conference.
(2) As soon as is practicable after the
conclusion of a conference held under this Subdivision in relation to the
proposed issue of a recall notice, the Commission must:
(a) by written notice given to the
Commonwealth Minister, recommend that the Commonwealth Minister:
(i) issue the recall
notice in the same terms as the draft recall notice referred to in paragraph
132A(3)(c); or
(ii) issue the recall
notice with such modifications to that draft recall notice as are specified by
the Commission; or
(iii) not issue the recall
notice; and
(b) cause a copy of the notice given
under paragraph (a) to be given to each person who was present or
represented at the conference.
(3) The Commonwealth Minister must:
(a) have regard to a recommendation
made under paragraph (1)(a) or (2)(a); and
(b) if he or she decides to act
otherwise than in accordance with the recommendation—the Commonwealth Minister
must, by written notice published on the internet, set out the reasons for his
or her decision.
Subdivision B—Conference requirements after an interim ban is imposed
132E
Opportunity for a conference after an interim ban has been imposed by the
Commonwealth Minister
(1) This section applies if:
(a) an interim ban on consumer goods
of a particular kind, or on product related services of a particular kind, is
in force; and
(b) the interim ban was imposed by the
Commonwealth Minister; and
(c) before
the ban was imposed, the Commonwealth Minister published a notice under section 132J
certifying that the interim ban should be imposed without delay.
(2) The Commonwealth Minister must, by
written notice published on the internet, invite any person who supplied, or
proposes to supply:
(a) consumer goods of that kind; or
(b) product related services of that
kind;
to notify the Commission, in writing and within a period
specified in the notice, if the person wishes the Commission to hold a
conference in relation to the interim ban.
(3) The period specified in the notice under subsection (2):
(a) must be a period of at least 10
days, or such longer period as the Commonwealth Minister specifies in the
notice; and
(b) must not commence before the day
on which the notice is published.
(4) A notice under subsection (2) is not
a legislative instrument.
132F
Notification of conference
(1) If one or more persons notify the
Commission in accordance with a notice published under subsection 132E(2) that
they wish the Commission to hold a conference, the Commission must:
(a) appoint a day, time and place for
the holding of the conference; and
(b) give written notice to the
Commonwealth Minister, and to each person who so notified the Commission, of
that day, time and place.
(2) The day appointed must be at least 5
days, but not more than 14 days, after the end of the period specified in the
notice under subsection 132E(2).
(3) A notice under paragraph (1)(b) is
not a legislative instrument.
132G
Recommendation after conclusion of conference
(1) As soon as is practicable after the
conclusion of a conference held under this Subdivision in relation to an
interim ban, the Commission must:
(a) by written notice given to the
Commonwealth Minister, recommend that the interim ban remain in force, be
varied or be revoked; and
(b) cause a copy of the notice to be
given to each person who was present or represented at the conference.
(2) The Commonwealth Minister must:
(a) have regard to a recommendation
made under paragraph (1)(a); and
(b) if he or she decides to act
otherwise than in accordance with the recommendation—the Commonwealth Minister
must, by written notice published on the internet, set out the reasons for his
or her decision.
Subdivision C—Conduct of conferences
132H
Conduct of conferences
(1) At a conference held under Subdivision A
or B of this Division:
(a) the Commission must be represented
by a member or members of the Commission who are nominated by the Chairperson;
and
(b) each person who notified the
Commission in accordance with whichever of the following is applicable:
(i) a proposed ban notice;
(ii) a proposed recall
notice;
(iii) a notice under
subsection 132E(2);
is entitled to be present or to
be represented; and
(c) any other person whose presence at
the conference is considered by the Commission to be appropriate is entitled to
be present or to be represented; and
(d) the Commonwealth Minister is, or a
person or persons nominated in writing by the Commonwealth Minister are,
entitled to be present; and
(e) the procedure to be followed must
be as determined by the Commission.
(2) The Commission must cause a record of the
proceedings at the conference to be kept.
(3) The Commission must, as far as is
practicable, ensure that each person who is entitled to be present, or who is
representing such a person, at the conference is given a reasonable opportunity
at the conference to present his or her case and in particular:
(a) to inspect any documents (other
than a document that contains particulars of a secret formula or process) which
the Commission proposes to consider for the purpose of making a recommendation
after the conclusion of the conference; and
(b) to make submissions in relation to
those documents.
Subdivision D—Miscellaneous
132J
Interim ban and recall notice without delay in case of danger to the public
(1) If it appears to the Commonwealth
Minister that consumer goods of a particular kind create an imminent risk of
death, serious illness or serious injury, he or she may, by written notice
published on the internet, certify that:
(a) an interim ban on consumer goods
of that kind should be imposed without delay; or
(b) a recall notice for consumer goods
of that kind should be issued without delay.
(2) If it appears to the Commonwealth
Minister that product related services of a particular kind create an imminent
risk of death, serious illness or serious injury, he or she may, by written
notice published on the internet, certify that an interim ban on services of
that kind should be imposed without delay.
(3) If:
(a) the Commonwealth Minister
publishes a notice under subsection (1) or (2); and
(b) action of any kind has been taken
under Subdivision A of this Division in relation to the interim ban or recall
notice, but no recommendation has been made under section 132D;
the Commonwealth Minister may impose the interim ban, or
issue the recall notice, without regard to that action.
(4) A notice under subsection (1) or (2)
is not a legislative instrument.
132K
Copy of notices under this Division to be given to suppliers
(1) If the Commonwealth Minister:
(a) issues a proposed ban notice; or
(b) issues a proposed recall notice;
or
(c) publishes a notice under
subsection 132E(2); or
(d) publishes a notice under
subsection 132J(1) or (2);
he or she must cause a copy of the notice to be given to
each person who, to the knowledge of the Commonwealth Minister, supplies the
consumer goods, or the product related services, to which the notice relates.
(2) The copy must be given:
(a) within 2 days after the
publication or issue of the notice; or
(b) if it is not practicable to give
the copy within that period—as soon as practicable after the end of that
period.
(3) A failure to comply with subsection (1)
does not invalidate the notice.
Division 4—Enforcement
Subdivision A—Inspectors
133
Appointment of inspectors
(1) The Chairperson may, in writing, appoint
a member of the staff assisting the Commission as an inspector.
(2) The Chairperson must not appoint a person
as an inspector unless the Chairperson is satisfied that the person has
suitable qualifications and experience to exercise properly the powers of an
inspector.
(3) An inspector must, in exercising powers
as an inspector, comply with any directions of the Chairperson.
(4) If a direction under subsection (3) is
given in writing, the direction is not a legislative instrument.
133A
Identity cards
(1) The Chairperson must issue an identity
card to a person appointed as an inspector.
Form of identity card
(2) The identity card must:
(a) be in the form prescribed by the
regulations; and
(b) contain a recent photograph of the
person.
Offence
(3) A person commits an offence if:
(a) the person has been issued with an
identity card under subsection (1); and
(b) the person ceases to be an
inspector; and
(c) the person does not, as soon as
practicable after so ceasing, return the identity card to the Chairperson.
Penalty: 1 penalty unit.
(4) An offence against subsection (3) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
Defence: card lost or destroyed
(5) Subsection (3) does not apply if the
identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation
to the matter in this subsection: see subsection 13.3(3) of the Criminal
Code.
Inspector must carry card
(6) An inspector issued with an identity card
under subsection (1) must carry his or her identity card at all times when
exercising powers as an inspector.
Subdivision B—Premises to which the public is given access
133B
Power to enter premises to which the public has access—consumer goods
(1) An inspector may enter premises in or
from which a person, in trade or commerce, supplies consumer goods, if the
public has access to the premises at the time of entry, for the purpose of
ascertaining whether:
(a) any of those
consumer goods will or may cause injury to any person; or
(b) a reasonably foreseeable use
(including a misuse) of those consumer goods will or may cause injury to any
person;
and remain on the premises for such a purpose while the
public has access to the premises.
(2) While on the premises, the inspector may:
(a) take photographs of:
(i) any of those consumer
goods; or
(ii) equipment used in the
manufacturing, processing or storage any of those consumer goods; and
(b) inspect, handle and measure any of
those consumer goods; and
(c) purchase any of those consumer
goods.
133C
Power to enter premises to which the public has access—product related services
(1) An inspector may enter premises in or
from which a person, in trade or commerce, supplies product related services,
if the public has access to the premises at the time of entry, for the purposes
of ascertaining whether:
(a) as a result of any of those
product related services being supplied, any consumer goods will or may cause
injury to any person; or
(b) a reasonably foreseeable use
(including a misuse) of any consumer goods, to which any of those product
related services relate, will or may cause injury to any person as a result of
those services being supplied;
and remain on the premises for such a purpose while the
public has access to the premises.
(2) While on the premises, the inspector may:
(a) take photographs of:
(i) the premises; or
(ii) equipment used to
supply any of those product related services; and
(b) inspect, handle and measure such
equipment; and
(c) purchase any of those product
related services.
Subdivision C—Disclosure notices relating to the safety of goods or
services
133D
Power to obtain information etc.
Consumer goods
(1) The Commonwealth Minister or an inspector
may give a disclosure notice to a person (the supplier) who, in
trade or commerce, supplies consumer goods of a particular kind if the person
giving the notice has reason to believe:
(a) that:
(i) consumer goods of that
kind will or may cause injury to any person; or
(ii) a reasonably
foreseeable use (including a misuse) of consumer goods of that kind will or may
cause injury to any person; and
(b) that the supplier is capable of
giving information, producing documents or giving evidence in relation to those
consumer goods.
Product related services
(2) The Commonwealth Minister or an inspector
may give a disclosure notice to a person (the supplier) who, in
trade or commerce, supplies product related services of a particular kind if
the person giving the notice has reason to believe:
(a) that:
(i) as a result of
services of that kind being supplied, consumer goods of a particular kind will
or may cause injury to any person; or
(ii) a reasonably
foreseeable use (including a misuse) of consumer goods of a particular kind, to
which such services relate, will or may cause injury to any person as a result
of such services being supplied; and
(b) that the supplier is capable of
giving information, producing documents or giving evidence in relation to those
services.
Disclosure notice
(3) A disclosure notice is a
written notice requiring the supplier:
(a) to give, in writing signed by the
supplier, any such information to the person specified in the notice:
(i) in the manner
specified in the notice; and
(ii) within such reasonable
time as is specified in the notice; or
(b) to produce, in accordance with
such reasonable requirements as are specified in the notice, any such documents
to the person specified in the notice; or
(c) to appear before the person
specified in the notice at such reasonable time, and at such place, as is
specified in the notice:
(i) to give any such
evidence, on oath or affirmation; and
(ii) to produce any such
documents.
(4) The person specified in the notice may
be:
(a) the Commonwealth Minister; or
(b) an inspector (whether or not that
inspector gave the notice).
133E
Self‑incrimination
(1) A person is not excused from:
(a) giving information or evidence; or
(b) producing a document;
as required by a disclosure notice given to the person on
the ground that the information or evidence, or production of the document,
might tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of an individual:
(a) the information or evidence given,
or the document produced; and
(b) giving the information or
evidence, or producing the document;
are not admissible in evidence against the individual:
(c) in any proceedings instituted by
the individual; or
(d) in any criminal proceedings, other
than proceedings against the individual for an offence against section 133F
or 133G.
133F
Compliance with disclosure notices
(1) A person commits an offence if:
(a) the person is given a disclosure
notice; and
(b) the person refuses or fails to
comply with the notice.
Penalty:
(a) if the person is a body
corporate—200 penalty units; or
(b) if the person is not a body
corporate—40 penalty units.
(2) Subsection (1) does not apply if the
person complies with the disclosure notice to the extent to which the person is
capable of complying with the notice.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection: see subsection 13.3(3) of the Criminal
Code.
(3) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
133G
False or misleading information etc.
A person commits an offence if:
(a) the person gives information,
evidence or a document in purported compliance with a disclosure notice; and
(b) the person does so knowing that
the information, evidence or document is false or misleading in a material
particular.
Penalty:
(a) if the person is a body
corporate—300 penalty units; or
(b) if the person is not a body
corporate—60 penalty units or imprisonment for 12 months, or both.
Subdivision D—Court orders relating to the destruction etc. of goods
133H
Court orders relating to consumer goods that do not comply with a safety
standard etc.
(1) If a court is satisfied that:
(a) a person possesses or has control
of consumer goods of a particular kind; and
(b) any of the following apply:
(i) the consumer goods do
not comply with a safety standard that is in force for consumer goods of that
kind and the cause of that non‑compliance cannot be remedied;
(ii) a permanent ban on
consumer goods of that kind is in force;
(iii) a recall notice for
consumer goods of that kind is in force and a defect or dangerous
characteristic of such consumer goods identified in the notice cannot be
remedied;
the court may, on the application of an inspector, make an
order of a kind referred to in subsection (2).
(2) The court may make an order under subsection (1)
authorising one or more inspectors to do the following in accordance with any
requirements specified in the order:
(a) to enter the premises of the
person that are specified in the order;
(b) to search the premises for
consumer goods of a kind specified in the order;
(c) to seize any such consumer goods
that are found at those premises;
(d) to destroy or otherwise dispose of
any such consumer goods that are so seized.
(3) Before making an application under subsection (1),
the inspector must:
(a) take reasonable steps to discover
who has an interest in the consumer goods; and
(b) if it is practicable to do so,
notify each person whom the inspector believes to have such an interest of the
proposed application.
(4) A person notified under subsection (3)
is entitled to be heard in relation to the application.
133J
Recovery of reasonable costs of seizing, and destroying or disposing of,
consumer goods
(1) If an inspector seizes, and destroys or
otherwise disposes of, consumer goods in accordance with an order made under
subsection 133H(1):
(a) the person from whom the consumer
goods were seized; or
(b) if that person is not entitled to
possess the consumer goods—the owner of the consumer goods;
is liable to pay an amount equal to the costs reasonably
incurred by the inspector in seizing, and in destroying or disposing of, the
consumer goods.
(2) An amount payable by a person under subsection (1):
(a) is a debt due by the person to the
Commonwealth; and
(b) may be recovered by action in a
court of competent jurisdiction.
Division 5—Infringement notices
134
Purpose and effect of this Division
(1) The purpose of this Division is to
provide for the issue of an infringement notice to a person for an alleged
contravention of an infringement notice provision as an alternative to
proceedings for an order under section 224 of the Australian Consumer Law.
(2) This Division does not:
(a) require an infringement notice to
be issued to a person for an alleged contravention of an infringement notice
provision; or
(b) affect the liability of a person
to proceedings under Chapter 4 or Part 5‑2 of the Australian
Consumer Law in relation to an alleged contravention of an infringement notice
provision if:
(i) an infringement notice
is not issued to the person for the alleged contravention; or
(ii) an infringement notice
issued to a person for the alleged contravention is withdrawn under section 134G;
or
(c) prevent a court from imposing a
higher penalty than the penalty specified in the infringement notice if the person
does not comply with the notice.
134A
Issuing an infringement notice
(1) If the Commission has reasonable grounds
to believe that a person has contravened an infringement notice provision, the Commission
may issue an infringement notice to the person.
(2) Each of the following provisions of the
Australian Consumer Law is an infringement notice provision:
(a) a provision of Part 2‑2;
(b) a provision of Part 3‑1
(other than subsection 32(1), 35(1) or 36(1), (2) or (3) or section 40 or 43);
(c) subsection 66(2);
(d) a provision of Division 2 of
Part 3‑2 (other than section 85);
(e) a provision of Division 3 of
Part 3‑2 (other than subsection 96(2));
(f) subsection 100(1) or (3), 101(3)
or (4), 102(2) or 103(2);
(g) subsection 106(1), (2), (3) or (5),
107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2)
or (6), 131(1), 132(1), 136(1), (2) or (3) or 137(1) or (2);
(h) subsection 221(1) or 222(1).
(3) The Commission must not issue more than
one infringement notice to the person for the same alleged contravention of the
infringement notice provision.
(4) The infringement notice does not have any
effect if the notice:
(a) is issued more than 12 months
after the day on which the contravention of the infringement notice provision
is alleged to have occurred; or
(b) relates to more than one alleged
contravention of an infringement notice provision by the person.
134B
Matters to be included in an infringement notice
An infringement notice must:
(a) be identified by a unique number;
and
(b) state the day on which it is
issued; and
(c) state the name and address of the
person to whom it is issued; and
(d) identify the Commission; and
(e) state how the Commission may be
contacted; and
(f) give details of the alleged contravention
by the person, including:
(i) the date of the
alleged contravention; and
(ii) the particular
infringement notice provision that was allegedly contravened; and
(g) state the maximum pecuniary
penalty that the court could order the person to pay under section 224 of
the Australian Consumer Law for the alleged contravention; and
(h) specify the penalty that is
payable in relation to the alleged contravention; and
(i) state that the penalty is payable
within the infringement notice compliance period for the notice; and
(j) state that the penalty is payable
to the Commission on behalf of the Commonwealth; and
(k) explain how payment of the penalty
is to be made; and
(l) explain the effect of sections 134D,
134E, 134F and 134G.
134C
Amount of penalty
The penalty to be specified in an
infringement notice that is to be issued to a person, in relation to an alleged
contravention of a provision of the Australian Consumer Law, must be a penalty
equal to the amount worked out using the following table:
|
Amount of penalty
|
|
Item
|
If the infringement
notice is for an alleged contravention of one of the following provisions of
the Australian Consumer Law ...
|
the amount is ...
|
|
1
|
a provision of Part 2‑2
|
(a) if the person is a listed corporation—600 penalty units;
or
(b) if the person is a body corporate other than a listed
corporation—60 penalty units; or
(c) if the person is not a body corporate—12 penalty units.
|
|
2
|
a provision of Part 3‑1 (other than subsection 32(1),
35(1), 36(1), (2) or (3), section 40 or 43 or subsection 47(1))
|
(a) if the person is a listed corporation—600 penalty units;
or
(b) if the person is a body corporate other than a listed
corporation—60 penalty units; or
(c) if the person is not a body corporate—12 penalty units.
|
|
3
|
subsection 47(1)
|
(a) if the person is a body corporate—10 penalty units; or
(b) if the person is not a body corporate—2 penalty units.
|
|
4
|
subsection 66(2)
|
(a) if the person is a body corporate—55 penalty units; or
(b) if the person is not a body corporate—11 penalty units.
|
|
5
|
a provision of Division 2 of Part 3‑2
(other than section 85)
|
(a) if the person is a body corporate—60 penalty units; or
(b) if the person is not a body corporate—12 penalty units.
|
|
6
|
a provision of Division 3 of Part 3‑2
(other than subsection 96(2))
|
(a) if the person is a body corporate—55 penalty units; or
(b) if the person is not a body corporate—11 penalty units.
|
|
7
|
subsection 100(1) or (3) or 101(3) or (4)
|
(a) if the person is a body corporate—20 penalty units; or
(b) if the person is not a body corporate—4 penalty units.
|
|
8
|
subsection 102(2) or 103(2)
|
(a) if the person is a body corporate—60 penalty units; or
(b) if the person is not a body corporate—12 penalty units.
|
|
9
|
subsection 106(1), (2), (3) or (5), 107(1) or (2), 118(1),
(2), (3) or (5), 119(1) or (2)
|
(a) if the person is a listed corporation—600 penalty units;
or
(b) if the person is a body corporate other than a listed
corporation—60 penalty units; or
(c) if the person is not a body corporate—12 penalty units.
|
|
10
|
subsection 125(4)
|
(a) if the person is a body corporate—30 penalty units; or
(b) if the person is not a body corporate—6 penalty units.
|
|
11
|
subsection 127(1) or (2)
|
(a) if the person is a listed corporation—600 penalty units;
or
(b) if the person is a body corporate other than a listed
corporation—60 penalty units; or
(c) if the person is not a body corporate—12 penalty units.
|
|
12
|
subsection 128(2) or (6), 131(1) or 132(1)
|
(a) if the person is a body corporate—30 penalty units; or
(b) if the person is not a body corporate—6 penalty units.
|
|
13
|
subsection 136(1), (2) or (3) or 137(1) or (2)
|
(a) if the person is a listed corporation—600 penalty units;
or
(b) if the person is a body corporate other than a listed
corporation—60 penalty units; or
(c) if the person is not a body corporate—12 penalty units.
|
|
14
|
subsection 221(1)
|
(a) if the person is a body corporate—30 penalty units; or
(b) if the person is not a body corporate—6 penalty units.
|
|
15
|
subsection 222(1)
|
(a) if the person is a body corporate—50 penalty units; or
(b) if the person is not a body corporate—10 penalty units.
|
134D
Effect of compliance with an infringement notice
(1) This section applies if:
(a) an infringement notice for an
alleged contravention of an infringement notice provision is issued to a
person; and
(b) the person pays the penalty
specified in the infringement notice within the infringement notice compliance
period and in accordance with the notice; and
(c) the infringement notice is not
withdrawn under section 134G.
(2) The person is not, merely because of the
payment, regarded as:
(a) having contravened the
infringement notice provision; or
(b) having been convicted of an
offence constituted by the same conduct that constituted the alleged
contravention of the infringement notice provision.
(3) No proceedings (whether criminal or
civil) may be started or continued against the person, by or on behalf of the
Commonwealth, in relation to:
(a) the alleged contravention of the
infringement notice provision; or
(b) an offence constituted by the same
conduct that constituted the alleged contravention.
134E
Effect of failure to comply with an infringement notice
If:
(a) an infringement notice for an
alleged contravention of an infringement notice provision is issued to a
person; and
(b) the person fails to pay the
penalty specified in the infringement notice within the infringement notice
compliance period and in accordance with the notice; and
(c) the infringement notice is not
withdrawn under section 134G;
the person is liable to proceedings under Chapter 4
or Part 5‑2 of the Australian Consumer Law in relation to the
alleged contravention of the infringement notice provision.
134F
Infringement notice compliance period for infringement notice
(1) Subject to this section, the infringement
notice compliance period for an infringement notice is the period of 28
days beginning on the day after the day on which the infringement notice is
issued by the Commission.
(2) The Commission may extend, by notice in
writing, the infringement notice compliance period for the notice if the Commission
is satisfied that it is appropriate to do so.
(3) Only one extension may be given and the
extension must not be for longer than 28 days.
(4) Notice of the extension must be given to
the person who was issued the infringement notice.
(5) A failure to comply with subsection (4)
does not affect the validity of the extension.
(6) If the Commission extends the
infringement notice compliance period for an infringement notice, a reference
in this Division to the infringement notice compliance period for an
infringement notice is taken to be a reference to the infringement notice
compliance period as so extended.
134G
Withdrawal of an infringement notice
Representations to the Commission
(1) The person to whom an infringement notice
has been issued for an alleged contravention of an infringement notice
provision may make written representations to the Commission seeking the
withdrawal of the infringement notice.
(2) Evidence or information that the person,
or a representative of the person, gives to the Commission in the course of
making representations under subsection (1) is not admissible in evidence
against the person or representative in any proceedings (other than proceedings
for an offence based on the evidence or information given being false or
misleading).
Withdrawal by the Commission
(3) The Commission may, by written notice
(the withdrawal notice) given to the person to whom an
infringement notice was issued, withdraw the infringement notice if the Commission
is satisfied that it is appropriate to do so.
(4) Subsection (3) applies whether or
not the person has made representations seeking the withdrawal.
Content of withdrawal notices
(5) The withdrawal notice must state:
(a) the name and address of the person;
and
(b) the day on which the infringement
notice was issued to the person; and
(c) that the infringement notice is
withdrawn; and
(d) that proceedings under Chapter 4
or Part 5‑2 of the Australian Consumer Law may be started or
continued against the person in relation to:
(i) the alleged
contravention of the infringement notice provision; or
(ii) an offence constituted
by the same conduct that constituted the alleged contravention.
Time limit for giving withdrawal notices
(6) To be effective, the withdrawal notice
must be given to the person within the infringement notice compliance period
for the infringement notice.
Refunds
(7) If the infringement notice is withdrawn
after the person has paid the penalty specified in the infringement notice, the
Commission must refund to the person an amount equal to the amount paid.
Division 6—Search, seizure and entry
Subdivision A—Powers of inspectors
135
Inspector may enter premises
Consumer goods
(1) If an inspector has reason to believe
that:
(a) consumer goods of a particular
kind will or may cause injury to any person; or
(b) a reasonably foreseeable use
(including a misuse) of consumer goods of a particular kind will or may cause
injury to any person;
the inspector may, for the purposes of ascertaining the
matter referred to in paragraph (a) or (b):
(c) enter any premises in or from
which the inspector has reason to believe that a person supplies consumer goods
of that kind in trade or commerce; and
(d) exercise search‑related
powers in relation to the premises.
Product related services
(2) If an inspector has reason to believe
that:
(a) as a result of product related
services of a particular kind being supplied, consumer goods of a particular
kind will or may cause injury to any person; or
(b) a reasonably foreseeable use
(including a misuse) of consumer goods of a particular kind, to which product
related services of a particular kind relate, will or may cause injury to any
person as a result of such services being supplied;
the inspector may, for the purposes of ascertaining the
matter referred to in paragraph (a) or (b):
(c) enter any premises in or from
which the inspector has reason to believe that a person supplies product
related services of that kind in trade or commerce; and
(d) exercise search‑related
powers in relation to the premises.
Limitation on entry
(3) However, the inspector is not entitled to
enter premises under subsection (1) or (2) unless:
(a) the occupier of the premises has
consented to the entry and the inspector has shown his or her identity card if
required by the occupier; or
(b) the entry is made under a search
warrant; or
(c) the entry is made in circumstances
in which the exercise of search‑related powers is required without delay
in order to protect life or public safety.
Note: For requirements relating to the occupier’s
consent, see section 135H.
135A
Search‑related powers of inspectors
Search‑related powers—consumer goods
(1) The following are the search‑related
powers that an inspector may exercise, under subsection 135(1), in
relation to premises in or from which the inspector has reason to believe that
a person supplies consumer goods of a particular kind:
(a) if entry to the premises is under
a search warrant—the power to seize consumer goods of that kind;
(b) the power to inspect, handle and
measure consumer goods of that kind;
(c) the power to take samples of
consumer goods of that kind;
(d) the power:
(i) to inspect, handle and
read any documents relating to consumer goods of that kind; and
(ii) to make copies of, or
take extracts from, those documents;
(e) the power:
(i) to inspect, handle and
measure equipment used in the manufacturing, processing or storage of consumer
goods of that kind; and
(ii) if entry to the
premises is under a search warrant—to seize such equipment;
(f) the power to make any still or
moving image or any recording of:
(i) consumer goods of that
kind; or
(ii) the premises; or
(iii) any equipment referred
to in subparagraph (e)(i).
Search‑related powers—product related services
(2) The following are the search‑related
powers that an inspector may exercise, under subsection 135(2), in
relation to premises in or from which the inspector has reason to believe that
a person supplies product related services of a particular kind:
(a) the power:
(i) to inspect, handle and
read any documents relating to services of that kind; and
(ii) to make copies of, or
take extracts from, those documents;
(b) the power:
(i) to inspect, handle and
measure equipment used to supply services of that kind; and
(ii) if entry to the
premises is under a search warrant—to seize such equipment;
(c) the power to make any still or
moving image or any recording of:
(i) any consumer goods to
which product related services of that kind relate; or
(ii) the premises; or
(iii) any equipment referred
to in subparagraph (b)(i).
135B
Inspector may ask questions and seek production of documents
Entry with consent etc.
(1) If an inspector enters premises because
the occupier of the premises consents to the entry or in the circumstances
referred to in paragraph 135(3)(c), the inspector may ask the occupier to:
(a) answer any questions relating to
the reasons for the inspector entering the premises that are put by the
inspector; and
(b) produce any document relating to
the reasons for the inspector entering the premises that is requested by the
inspector.
Entry under a search warrant
(2) If an inspector enters premises under a
search warrant, the inspector may require any person on the premises to:
(a) answer any questions relating to
the reasons for the inspector entering the premises that are put by the
inspector; and
(b) produce any document relating to
the reasons for the inspector entering the premises that is requested by the
inspector.
135C Failure
to answer questions or produce documents
(1) A person commits an offence if:
(a) the person is subject to a
requirement under subsection 135B(2); and
(b) the person fails to comply with
the requirement.
Penalty:
(a) if the person is a body corporate—150
penalty units; or
(b) if the person is not a body
corporate—30 penalty units.
(2) A person is not excused from:
(a) answering a question; or
(b) producing a document;
as required under subsection 135B(2) on the ground that
the answer, or production of the document, might tend to incriminate the person
or expose the person to a penalty.
(3) However, in the case of an individual:
(a) the answer, or the document
produced; and
(b) giving the answer, or producing
the document;
are not admissible in evidence against the individual in
any criminal proceedings other than:
(c) proceedings for any offence
against subsection (1); or
(d) proceedings for an offence based
on the answer or document being false or misleading; or
(e) proceedings for an offence based
on the obstruction of public officials.
(4) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
135D
Persons assisting inspectors
Inspectors may be assisted by other persons
(1) An inspector may, in entering premises
under section 135 and in exercising search‑related powers in
relation to the premises, be assisted by other persons if that assistance is
necessary and reasonable.
(2) A person giving such assistance is a person
assisting the inspector.
Powers of a person assisting the inspector
(3) A person assisting the inspector may:
(a) enter the premises; and
(b) exercise search‑related
powers in relation to the premises, but only in accordance with a direction
given to the person by the inspector.
(4) A power exercised by a person assisting
the inspector as mentioned in subsection (3) is taken for all purposes to
have been exercised by the inspector.
135E
Use of force in executing a search warrant
In executing a search warrant, an
inspector executing the warrant may use such force against persons and things
as is necessary and reasonable in the circumstances.
135F
Announcement before entry under warrant
(1) An inspector must, before entering
premises under a search warrant:
(a) announce that he or she is
authorised to enter the premises; and
(b) show his or her identity card to
the occupier of the premises, or to another person who apparently represents
the occupier, if the occupier or other person is present at the premises; and
(c) give any person at the premises an
opportunity to allow entry to the premises.
(2) However, an inspector is not required to
comply with subsection (1) if he or she believes on reasonable grounds
that immediate entry to the premises is required:
(a) to ensure the safety of a person
(including the inspector or a person assisting the inspector); or
(b) to ensure that the effective
execution of the warrant is not frustrated.
(3) If:
(a) the inspector does not comply with
subsection (1) because of subsection (2); and
(b) the occupier of the premises, or
another person who apparently represents the occupier, is present at the
premises;
the inspector must, as soon as practicable after entering
the premises, show his or her identity card to the occupier or other person.
135G
Inspector must be in possession of search warrant
If a search warrant is being executed in
relation to premises, an inspector executing the warrant must be in possession
of:
(a) the warrant issued under section 135Z
or a copy of that warrant; or
(b) the form of warrant completed
under subsection 136(7), or a copy of that form.
Subdivision B—Obligations of inspectors
135H
Consent
(1) An inspector must, before obtaining the
consent of an occupier of premises for the purposes of paragraph 135(3)(a),
inform the occupier that the occupier may refuse consent.
(2) A consent has no effect unless the
consent is voluntary.
(3) If an inspector enters premises because
the occupier of the premises consented to the entry, the inspector, and a
person assisting the inspector, must leave the premises if the consent ceases
to have effect.
135J
Details of search warrant etc. must be given to the occupier of the premises
If:
(a) a search warrant is being executed
in relation to premises; and
(b) the occupier of the premises, or
another person who apparently represents the occupier, is present at the
premises;
an inspector executing the warrant must, as soon as
practicable:
(c) do one of the following:
(i) if the warrant was
issued under section 135Z—make a copy of the warrant available to the
occupier or other person (which need not include the signature of the judge who
issued it);
(ii) if the warrant was
signed under section 136—make a copy of the form of warrant completed
under subsection 136(7) available to the occupier or other person; and
(d) inform the occupier or other
person of the rights and responsibilities of the occupier or other person under
Subdivision C.
Subdivision C—Occupier’s etc. rights and responsibilities
135K Occupier
etc. entitled to observe execution of search warrant
(1) If:
(a) a search warrant is being executed
in relation to premises; and
(b) the occupier of the premises, or
another person who apparently represents the occupier, is present at the premises;
the occupier or other person is entitled to observe the
execution of the warrant.
(2) The right to observe the execution of the
search warrant ceases if the occupier or other person impedes that execution.
(3) This section does not prevent the execution
of the search warrant in 2 or more areas of the premises at the same time.
135L
Occupier etc. to provide inspector etc. with facilities and assistance
(1) A person commits an offence if:
(a) the person is:
(i) the occupier of
premises to which a search warrant relates; or
(ii) another person who
apparently represents the occupier of those premises; and
(b) the person fails to provide:
(i) an inspector executing
the warrant; and
(ii) a person assisting the
inspector;
with all reasonable facilities
and assistance for the effective exercise of their powers.
Penalty:
(a) if the person is a body
corporate—600 penalty units; or
(b) if the person is not a body
corporate—120 penalty units or imprisonment for 2 years, or both.
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
135M
Receipts for seized consumer goods and equipment
(1) If consumer goods are seized under a
search warrant, an inspector must provide a receipt for the goods.
(2) If equipment is seized under a search
warrant, an inspector must provide a receipt for the equipment.
(3) One receipt may cover:
(a) consumer goods and equipment that
have been so seized; and
(b) 2 or more kinds of consumer goods
or equipment that have been so seized.
135N Return
of seized consumer goods and equipment
(1) Subject to any order under section 135P,
if an inspector seizes consumer goods or equipment under a search warrant, the
inspector must take reasonable steps to return the consumer goods or equipment
if:
(a) the reason for the seizure no
longer exists; or
(b) the period of 60 days after the
seizure ends;
whichever happens first.
(2) Subsection (1) does not apply if:
(a) the consumer goods are, or the
equipment is, forfeited or forfeitable to the Commonwealth; or
(b) the consumer goods are, or the
equipment is, the subject of a dispute as to ownership.
(3) If, apart from this subsection, the
inspector would be required to take reasonable steps to return consumer goods
or equipment under subsection (1) because of paragraph (b) of that
subsection, the inspector is not required to do so if:
(a) the return of the consumer goods
or equipment could cause an imminent risk of death, serious illness or serious
injury; or
(b) the inspector is otherwise
authorised (by a law, or an order of a court, of the Commonwealth or of a State
or a Territory) to retain, destroy, dispose of or otherwise deal with the
consumer goods or equipment.
(4) Consumer goods that are required to be
returned under this section must be returned to the person from whom they were
seized (or to the owner if that person is not entitled to possess them).
(5) Equipment that is required to be returned
under this section must be returned to the person from whom it was seized (or
to the owner if that person is not entitled to possess it).
135P
Judge may permit consumer goods or equipment to be retained
(1) An inspector who has seized consumer
goods or equipment under a search warrant may, before the end of the period
referred to in paragraph 135N(1)(b), apply to a judge of the Federal Court for
an order that the inspector may retain the consumer goods or equipment for a
further period of up to 60 days.
(2) If:
(a) an application to a judge is made
under subsection (1); and
(b) the judge is satisfied that it is
necessary in all the circumstances for the inspector to continue to retain the
consumer goods or equipment;
the judge may order that the inspector may retain the
consumer goods or equipment for a further period (not exceeding 60 days)
specified in the order.
(3) Before making the application under subsection (1),
the inspector must:
(a) take reasonable steps to discover
who has an interest in the retention of the consumer goods or equipment; and
(b) if it is practicable to do so,
notify each person whom the inspector believes to have such an interest of the
proposed application.
Subdivision D—Provisions relating to seizure
135Q
Recovery of reasonable costs of seizing consumer goods or equipment
(1) If an inspector seizes consumer goods or
equipment under a search warrant:
(a) the person from whom the consumer
goods were seized, or the equipment was seized; or
(b) if that person is not entitled to
possess the consumer goods or equipment—the owner of the consumer goods or
equipment;
is liable to pay an amount equal to the costs reasonably
incurred by the inspector in seizing the consumer goods or equipment.
(2) An amount payable by a person under subsection (1):
(a) is a debt due by the person to the
Commonwealth; and
(b) may be recovered by action in a
court of competent jurisdiction.
135R
Destruction or disposal of seized consumer goods or equipment
(1) If:
(a) an inspector seizes consumer goods,
or equipment used to supply product‑related services, under a search
warrant; and
(b) apart from this section, the
inspector is required to return the consumer goods or equipment to a person;
and
(c) either:
(i) the inspector cannot,
despite making reasonable efforts, locate the person; or
(ii) the person has refused
to take possession of the consumer goods or equipment;
a court may, on the application of the inspector, make an
order authorising the inspector to destroy or otherwise dispose of the consumer
goods or equipment.
(2) If subparagraph (1)(c)(ii) applies,
the inspector must, before making an application under subsection (1),
inform the person referred to in that subparagraph that the inspector proposes
to make an application under that subsection.
(3) If:
(a) an order is made under subsection (1);
and
(b) subparagraph (1)(c)(ii)
applies;
the person referred to in that subparagraph is liable to
pay an amount equal to the costs reasonably incurred by the inspector in
destroying or disposing of the consumer goods or equipment.
(4) An amount payable by a person under subsection (3):
(a) is a debt due by the person to the
Commonwealth; and
(b) may be recovered by action in a
court of competent jurisdiction.
Subdivision E—Embargo notices
135S
Embargo notices
(1) An inspector who enters premises under a
search warrant may give an embargo notice to the occupier of the
premises.
(2) The inspector may give the notice to the
occupier of the premises:
(a) by causing a copy of the notice to
be served on the occupier; or
(b) if the occupier cannot be located
after all reasonable steps have been taken to do so—by:
(i) causing a copy of the
notice to be served on a person on the premises who is reasonably believed to
be in regular contact with the occupier; or
(ii) causing a copy of the
notice to be affixed to the premises, or to a thing on the premises, in a
prominent position.
(3) The embargo notice must:
(a) be in writing; and
(b) specify the consumer goods, or
product related services, to which the notice relates; and
(c) if the notice relates to consumer
goods—state that the specified consumer goods must not be:
(i) supplied in or from
the premises; or
(ii) transferred, moved,
altered, destroyed or otherwise interfered with;
during the period specified in
the notice; and
(d) if the notice relates to product
related services—state that the specified product related services must not be
supplied in or from the premises during the period specified in the notice; and
(e) explain the effect of section 135V
or 135W.
(4) Despite anything in any other law, a
contract for a supply of consumer goods or product related services that is
prohibited by an embargo notice is void.
(5) If consumer goods are supplied in
contravention of an embargo notice:
(a) the supplier must immediately
return or refund to the person who acquired the goods any consideration (or the
value of any consideration) that that person gave:
(i) under an agreement for
the supply; or
(ii) under a related
contract or instrument; and
(b) if the goods have been removed
from the premises in which they were subject to the embargo notice—the person
who acquired the goods must:
(i) return the goods to
the premises; or
(ii) notify the supplier of
the place where the supplier may collect the goods; and
(c) if subparagraph (b)(ii)
applies—the supplier must collect the goods from the place notified to the
supplier, and return them to the premises.
135T
Embargo period for embargo notices
Embargo period
(1) Subject to this section, the embargo
period for an embargo notice must not be longer than:
(a) if the inspector giving the notice
secures consumer goods under section 135V or secures equipment under
section 135W—24 hours; or
(b) otherwise—28 days.
Extensions of embargo period
(2) An inspector may, before the embargo
period ends, apply to a judge of the Federal Court for an extension of the
period.
(3) If an inspector intends to make an
application under subsection (2), the inspector must, before making the
application, notify the occupier of the premises to which the embargo notice
relates of that intention.
(4) The occupier of the premises is entitled
to be heard in relation to the application.
(5) The judge may extend the embargo period
for a specified period if the judge is satisfied that the extension is
necessary in all the circumstances.
135U
Multiple embargo notices for the same consumer goods or product related
services
An inspector must not give an embargo
notice in relation to consumer goods, or product related services, of a
particular kind if:
(a) an embargo notice (the earlier
embargo notice) has already been given in relation to consumer goods,
or product related services, of that kind; and
(b) the embargo period for the earlier
embargo notice did not end at least 5 days ago.
135V
Power of inspectors to secure consumer goods
If:
(a) an embargo notice relates to
consumer goods; and
(b) the inspector who gives the notice
believes on reasonable grounds that it is necessary to secure the consumer
goods in order to ensure that the notice is complied with;
the inspector may, during the embargo period for the
embargo notice, do anything that the inspector thinks is necessary to secure
those consumer goods (whether by locking them up, placing a guard or
otherwise).
135W
Power of inspectors to secure equipment used to supply product related services
If:
(a) an embargo notice relates to
product related services; and
(b) the inspector who gives the notice
believes on reasonable grounds that it is necessary to secure equipment used to
supply the services in order to ensure that the notice is complied with;
the inspector may, during the embargo period for the
embargo notice, do anything that the inspector thinks is necessary to secure that
equipment (whether by locking it up, placing a guard or otherwise).
135X
Consent to supply etc. embargoed consumer goods etc.
(1) If an embargo notice relating to consumer
goods has been given, the owner of the goods or another person who has an
interest in the goods may, in writing, request consent to do any of the
following:
(a) to supply the goods;
(b) to transfer, move, alter, destroy
or otherwise interfere with the goods.
(2) If an embargo notice relating to product
related services has been given, the following persons may, in writing, request
consent to supply the services:
(a) the person who would, but for the
embargo notice, supply the services;
(b) another person whose interests
would be affected if the services were not supplied.
(3) If a request for consent is made under subsection (1)
or (2), the requested consent may be given, in writing, by the Commonwealth
Minister, the Chairperson or any inspector.
(4) A consent given under subsection (3)
is not a legislative instrument.
135Y
Compliance with embargo notices
(1) A person commits an offence if:
(a) the person knows that an embargo
notice has been given; and
(b) the person, contrary to the
embargo notice, does an act or omits to do an act.
Penalty:
(a) if the person is a body
corporate—200 penalty units; or
(b) if the person is not a body
corporate—40 penalty units.
(2) A person commits an offence if:
(a) the person knows that an embargo
notice has been given; and
(b) the person causes another person:
(i) to do an act that is
contrary to the embargo notice; or
(ii) contrary to the
embargo notice, to omit to do an act.
Penalty:
(a) if the person is a body
corporate—200 penalty units; or
(b) if the person is not a body
corporate—40 penalty units.
(3) Subsection (1) or (2) does not apply
in relation to:
(a) an act done in accordance with a
consent given under section 135X; or
(b) if the embargo notice relates to
consumer goods—an act done for the purpose of protecting or preserving the
consumer goods; or
(c) if the embargo notice relates to
product related services—an act done for the purpose of protecting or preserving
equipment used to supply the services.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection: see subsection 13.3(3) of the Criminal
Code.
(4) Strict liability applies to paragraphs (1)(b)
and (2)(b).
Note: For strict liability, see section 6.1 of
the Criminal Code.
Subdivision F—Issue of search warrants
135Z
Issue of search warrants
Application for warrant
(1) An inspector may apply to a judge of the
Federal Court for a warrant in relation to premises.
Issue of warrant
(2) The judge may issue the warrant if:
(a) an affidavit has been given to the
judge setting out the grounds on which the issue of the warrant is being
sought; and
(b) the applicant, or some other
person, has given to the judge such further information (if any) as the judge
requires concerning the grounds on which the issue of the warrant is being
sought; and
(c) the judge is satisfied that there
are reasonable grounds for issuing the warrant.
Content of warrant
(3) The warrant must:
(a) specify the purpose for which the
warrant is issued; and
(b) describe the premises to which the
warrant relates; and
(c) state that the warrant is
issued under this section; and
(d) name one or more inspectors; and
(e) authorise the inspector or inspectors
so named:
(i) to enter the premises;
and
(ii) to exercise search‑related
powers in relation to the premises; and
(f) state whether the entry is
authorised to be made at any time of the day or night, or during specified
hours of the day or night; and
(g) specify a day (which must not be
more than 7 days after the day the warrant is issued) on which the warrant
ceases to be in force.
136
Search warrants by telephone, fax etc.
Application for warrant
(1) An inspector may apply to a judge of the
Federal Court by telephone, fax or other electronic means for a warrant under
section 135Z in relation to premises if the inspector believes on
reasonable grounds that the delay that would occur if an application were made
in person would frustrate the effective execution of the warrant.
Voice communication
(2) The judge may require communication by
voice to the extent that it is practicable in the circumstances.
Affidavit
(3) Before applying for the warrant, the
inspector must prepare an affidavit of the kind mentioned in paragraph
135Z(2)(a).
(4) If it is necessary to do so, the
inspector may apply for the warrant before the affidavit has been sworn.
Signing of warrant
(5) If the judge is satisfied:
(a) after considering the terms of the
affidavit; and
(b) after receiving such further
information (if any) as the judge requires concerning the grounds on which the
issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant,
the judge may complete and sign the same warrant that the judge would issue
under section 135Z if the application had been made under that section.
Notification
(6) If the judge completes and signs the
warrant, the judge must inform the inspector, by telephone, fax or other
electronic means, of:
(a) the terms of the warrant; and
(b) the day on which and the time at
which the warrant was signed.
Form of warrant
(7) The inspector must then complete a form
of warrant in the same terms as the warrant completed and signed by the judge, stating
on the form the name of the judge and the day on which and the time at which
the warrant was signed.
Completed form of warrant to be given to judge
(8) The inspector must also, not later than
the day after the day on which the warrant ceased to be in force or the day of
execution of the warrant, whichever is the earlier, send to the judge:
(a) the form of warrant completed by
the inspector; and
(b) the affidavit referred to in subsection (3),
which must have been duly sworn.
Attachment
(9) The judge must attach to the documents
provided under subsection (8) the warrant signed by the judge.
Authority of warrant
(10) A form of warrant duly completed under subsection (7)
is authority for the same powers as are authorised by the warrant signed by the
judge.
(11) If:
(a) it is material, in any
proceedings, for a court to be satisfied that an exercise of a power was
authorised by this section; and
(b) the warrant signed by the judge
authorising the exercise of the power is not produced in evidence;
the court must assume, unless the contrary is proved, that
the exercise of the power was not authorised by such a warrant.
136A
Offence relating to warrants by telephone, fax etc.
An inspector commits an offence if the
inspector:
(a) states in a document that purports
to be a form of warrant under section 136 the name of a judge unless that
judge signed the warrant; or
(b) states on a form of warrant under
that section a matter that, to the inspector’s knowledge, departs in a material
particular from the terms of the warrant signed by the judge under that
section; or
(c) purports to execute, or presents
to another person, a document that purports to be a form of warrant under that
section that the inspector knows:
(i) has not been approved
by a judge under that section; or
(ii) departs in a material
particular from the terms of a warrant signed by a judge under that section; or
(d) gives to a judge a form of warrant
under that section that is not the form of warrant that the inspector purported
to execute.
Penalty: 120 penalty units or imprisonment for 2 years, or
both.
Subdivision G—Miscellaneous
136B
Powers of judges
Powers conferred personally
(1) A power conferred on a judge by this
Division is conferred on the judge:
(a) in a personal capacity; and
(b) not as a court or a member of a
court.
Powers need not be accepted
(2) The judge need not accept the power
conferred.
Protection and immunity
(3) A judge exercising a power conferred by
this Division has the same protection and immunity as if he or she were exercising
the power:
(a) as the court of which the judge is
a member; or
(b) as a member of the court of which
the judge is a member.
Division 7—Remedies
137
Limit on occupational liability
State or Territory professional standards law limits
liability
(1) A professional standards law of a State,
the Australian Capital Territory or the Northern Territory applies to limit
occupational liability relating to an action for a contravention of section 18
of the Australian Consumer Law in the same way as it limits occupational
liability arising under a law of the State or Territory.
(2) However, the professional standards law
applies for that purpose:
(a) only in relation to a scheme that
was prescribed by the regulations at the time (the contravention time)
of the contravention; and
(b) as if the scheme were in force
under that law at the contravention time, in the form the scheme would have
been in if:
(i) the scheme had not
been amended or revoked under that law since the scheme was first prescribed;
and
(ii) any additions,
omissions, substitutions and other modifications prescribed by the regulations
at the contravention time had been made to the scheme.
Operation of choice of law rules
(3) For the purposes of working out whether a
professional standards law of a particular State or Territory applies under subsection (1)
in relation to a particular contravention of section 18 of the Australian
Consumer Law, choice of law rules operate in relation to the contravention in
the same way as they operate in relation to a tort.
Professional standards laws
(4) A professional
standards law is a law that provides for the limitation of occupational
liability by reference to schemes for limiting that liability that were
formulated and published in accordance with that law.
Occupational liability
(5) Occupational liability is
civil liability arising directly or vicariously from anything done or omitted
by a person who:
(a) does or omits to do the thing in
the course of his or her profession, trade or occupation; and
(b) is a member of a body:
(i) that represents the
interests of persons who have the same profession, trade or occupation; and
(ii) whose membership is
limited principally to such persons.
137A
Contributory acts or omissions to reduce compensation in defective goods
actions
(1) If the loss or damage to which a
defective goods action under section 138 or 139 of the Australian Consumer
Law relates was caused by both:
(a) an act or omission of:
(i) the individual who
suffers the injuries referred to in that section; or
(ii) a person for whom that
individual is responsible; and
(b) a
safety defect of the goods to which the action relates;
the amount of the loss or damage is to be reduced to such
extent (which may be to nil) as the court thinks fit having regard to that
individual’s share in the responsibility for the loss or damage.
(2) If the loss or damage to which a
defective goods action under section 140 or 141 of the Australian Consumer
Law relates was caused by both:
(a) an act or omission of:
(i) the person who
suffered the loss or damage; or
(ii) another person for
whom that person is responsible; and
(b) a safety defect of the goods to
which the action relates;
the amount of the loss or damage is to be reduced to such
extent (which may be to nil) as the court thinks fit having regard to the
person’s share in the responsibility for the loss or damage.
137B
Reduction of the amount of loss or damage if the claimant fails to take
reasonable care
If:
(a) a person (the claimant)
makes a claim under subsection 236(1) of the Australian Consumer Law in
relation to economic loss, or damage to property, suffered by the claimant
because of the conduct of another person; and
(b) the conduct contravened section 18
of the Australian Consumer Law; and
(c) the claimant suffered the loss or
damage as result:
(i) partly of the
claimant’s failure to take reasonable care; and
(ii) partly of the conduct
of the other person; and
(d) the other person did not intend to
cause the loss or damage and did not fraudulently cause the loss or damage;
the amount of the loss or damage that the claimant may
recover under subsection 236(1) of the Australian Consumer Law is to be reduced
to the extent to which a court thinks just and equitable having regard to the
claimant’s share in the responsibility for the loss or damage.
137C
Limits on recovery of amounts for death or personal injury
(1) A person is not entitled to recover an
amount of loss or damage by action under subsection 236(1) of the Australian
Consumer Law to the extent to which:
(a) the action would be based on the
conduct contravening a provision of Part 2‑1 or 3‑1 of the
Australian Consumer Law; and
(b) the loss or damage is, or results
from, death or personal injury; and
(c) the death or personal injury does
not result from smoking or other use of tobacco products.
(2) Divisions 2 and 7 of Part VIB
of this Act apply to an action under subsection 236(1) of the Australian
Consumer Law for loss or damage a person suffers to the extent to which:
(a) the action is based on the conduct
contravening a provision of Part 2‑1 or 3‑1 of the Australian
Consumer Law; and
(b) the loss or damage is, or results
from, death or personal injury; and
(c) the death or personal injury
results from smoking or other use of tobacco products;
as if the action were a proceeding to which Part VIB
of this Act applied.
Note 1: Division 2 of Part VIB of this Act
deals with the limitation periods that apply for claims for damages or
compensation for death or personal injury and, to the extent to which that
Division is applied to the action by this subsection, it overrides subsection 236(2)
of the Australian Consumer Law.
Note 2: Division 7 of Part VIB of this Act
deals with structured settlements for claims for damages or compensation for
death or personal injury.
137D
Compensation orders etc. arising out of unfair contract terms
In determining whether to make an order
under subsection 237(1) or 238(1) of the Australian Consumer Law in relation
to:
(a) a contravention of a provision of
Part 2‑2 of the Australian Consumer Law; or
(b) a term of a consumer contract that
has been declared under section 250 of the Australian Consumer Law to be
an unfair term;
the court may have regard to the conduct of the parties to
the proceeding referred to in that subsection since the contravention occurred
or the declaration was made.
137E
Limits on compensation orders etc. for death or personal injury
(1) A court must not make an order under
subsection 237(1) or 238(1) of the Australian Consumer Law to compensate a
person for loss or damage the person suffers because of the conduct of another
person to the extent to which:
(a) the action would be based on the
conduct contravening a provision of Part 2‑1 or 3‑1 of the
Australian Consumer Law; and
(b) the loss or damage is, or results
from, death or personal injury; and
(c) the death or personal injury does
not result from smoking or other use of tobacco products.
(2) Division 2 of Part VIB of this
Act applies to an application for an order under subsection 237(1) of the
Australian Consumer Law to compensate a person for loss or damage the person
suffers because of the conduct of another person to the extent to which:
(a) the action would be based on the
conduct contravening a provision of Part 2‑1 or 3‑1 of the
Australian Consumer Law; and
(b) the loss or damage is, or results
from, death or personal injury; and
(c) the death or personal injury
results from smoking or other use of tobacco products;
as if the proceeding in relation to the application were a
proceeding to which Part VIB of this Act applies and as if the making of
the application were the commencement of the proceeding.
Note: Division 2 of Part VIB of this Act
deals with the limitation periods that apply for claims for damages or compensation
for death or personal injury and, to the extent to which that Division is
applied to the application by this subsection, it overrides subsection 237(3)
of the Australian Consumer Law.
(3) Division 7 of Part VIB of this
Act applies to a proceeding in which an order under subsection 237(1) or 238(1)
of the Australian Consumer Law to compensate a person for loss or damage the
person suffers because of the conduct of another person is made, to the extent
to which:
(a) the action would be based on the
conduct contravening a provision of Part 2‑1 or Part 3‑1
of the Australian Consumer Law; and
(b) the loss or damage is, or results
from, death or personal injury; and
(c) the death or personal injury
results from smoking or other use of tobacco products;
as if the proceeding were a proceeding to which Part VIB
of this Act applied.
Note: Division 7 of Part VIB of this Act
deals with structured settlements for claims for damages or compensation for
death or personal injury.
137F
Court may make orders for the purpose of preserving money or other property
held by a person
(1) A court may, on the application of the Commonwealth
Minister or the Commission, make an order or orders mentioned in subsection (3)
if:
(a) proceedings of a kind referred to
in subsection (2) have been taken against a person, or proceedings of a
kind referred to in paragraph (2)(d) may be taken against a person; and
(b) the court is satisfied that it is
necessary or desirable to make the order or orders for the purpose of
preserving money or other property held by, or on behalf of, the person if the
person is liable, or may become liable, under the Australian Consumer Law:
(i) to pay money by way of
a fine, damages, compensation, refund or otherwise; or
(ii) to transfer, sell or
refund other property; and
(c) the court is satisfied that the
making of such an order or orders will not unduly prejudice the rights and
interests of any other person.
Kinds of proceedings taken against the person
(2) For the purposes of paragraph (1)(a),
the kinds of proceedings taken against the person are:
(a) proceedings against the person for
an offence against a provision of Chapter 4 of the Australian Consumer
Law; or
(b) an application under section 232
of the Australian Consumer Law for an injunction against the person in relation
to:
(i) a contravention of a
provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or
(ii) a term of a consumer
contract in relation to which a declaration under section 250 of the
Australian Consumer Law has been made; or
(c) an action under subsection 236(1)
of the Australian Consumer Law against the person in relation to a
contravention of a provision of Part 2‑1 or Chapter 3 of the
Australian Consumer Law; or
(d) an
application for an order under subsection 237(1) or 239(1) of the Australian
Consumer Law against a person in relation to:
(i) a contravention of a
provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or
(ii) a term of a consumer
contract in relation to which a declaration under section 250 of the
Australian Consumer Law has been made.
Kinds of orders that may be made
(3) The court may make the following orders
under subsection (1) of this section in a relation to money or other
property held by, or on behalf of, a person (the respondent):
(a) an order prohibiting, either
absolutely or subject to conditions, a person who is indebted to the
respondent, or to an associate of the respondent, from making a payment, in
total or partial discharge of the debt:
(i) to the respondent; or
(ii) to another person at
the direction or request of the respondent;
(b) an order prohibiting, either
absolutely or subject to conditions, a person who is holding money or other
property on behalf of the respondent, or on behalf of an associate of the respondent:
(i) from paying all or any
of the money to the respondent, or to another person at the direction or
request of the respondent; or
(ii) from transferring the
other property to the respondent, or to another person at the direction or
request of the respondent, or otherwise parting with possession of that
property;
(c) an order prohibiting, either
absolutely or subject to conditions, the taking or sending by any person of
money of the respondent, or of an associate of the respondent, to a place outside
the State or Territory in which the money is held;
(d) an order prohibiting, either
absolutely or subject to conditions, the taking, sending or transfer by any
person of other property of the respondent, or of an associate of the
respondent, to a place outside the State or Territory in which that property is
located;
(e) if the respondent is a natural
person—an order appointing a receiver or trustee of the property, or of part of
the property, of the respondent with such powers as are specified in the order.
Operation of order
(4) If the court makes such an order, the
order operates:
(a) for the period specified in the
order (which must not be longer than 30 days if the application for the order
was an ex parte application); or
(b) if proceedings in relation to
which the order is made are concluded before the end of that period—until the
conclusion of those proceedings.
Other
(5) This section:
(a) has effect subject to the
Bankruptcy Act 1966; and
(b) does not affect any other powers
of the court.
137G
Compliance with orders made under section 137F
(1) A person commits an offence if:
(a) an order made under section 137F
applies to the person; and
(b) the person contravenes, or refuses
or fails to comply with, the order.
Penalty:
(a) if the person is a body
corporate—900 penalty units; or
(b) if the person is not a body
corporate—180 penalty units.
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
137H
Finding in proceedings to be evidence
(1) In an action against a person under
subsection 236(1) of the Australian Consumer Law:
(a) a finding of a fact by a court to
which subsection (3) of this section applies is prima facie evidence
of that fact; and
(b) the finding may be proved by
production of a document under the seal of the court from which the finding
appears.
(2) In proceedings for an order against a
person under subsection 237(1) or 239(1) of the Australian Consumer Law:
(a) a finding of a fact by a court to
which subsection (3) of this section applies is prima facie evidence
of that fact; and
(b) the finding may be proved by
production of a document under the seal of the court from which the finding
appears.
(3) This subsection applies to a finding of a
fact by a court that is made in proceedings under section 228, 232, 246, 247
or 248 of the Australian Consumer Law, or for an offence against a provision of
Chapter 4 of the Australian Consumer Law, in which the person has been
found:
(a) to have contravened a provision of
Chapter 2, 3 or 4 of the Australian Consumer Law; or
(b) to have attempted to contravene
such a provision; or
(c) to have aided, abetted, counselled
or procured a person to contravene such a provision; or
(d) to have induced, or attempted to
induce, a person, whether by threats or promises or otherwise, to contravene
such a provision; or
(e) to have been in any way, directly
or indirectly, knowingly concerned in, or party to, the contravention by a
person of such a provision; or
(f) to have conspired with others to
contravene such a provision.
Division 8—Jurisdictional matters
138
Conferring jurisdiction on the Federal Court
(1) Jurisdiction is conferred on the Federal
Court in relation to any matter arising under this Part or the Australian
Consumer Law in respect of which a civil proceeding has been instituted under
this Part or the Australian Consumer Law.
(2) The jurisdiction conferred by subsection (1)
on the Federal Court is exclusive of the jurisdiction of any other court other
than:
(a) the jurisdiction of the Federal
Magistrates Court under section 138A; and
(b) the jurisdiction of the several
courts of the States and Territories under section 138B; and
(c) the jurisdiction of the High Court
under section 75 of the Constitution.
138A
Conferring jurisdiction on the Federal Magistrates Court
(1) Subject to this section, jurisdiction is
conferred on the Federal Magistrates Court in relation to any matter arising
under this Part or the Australian Consumer Law in respect of which a civil
proceeding is instituted by a person other than the Commonwealth Minister.
(2) If proceedings under Part 3‑5,
or section 236, of the Australian Consumer Law are instituted in, or
transferred to, the Federal Magistrates Court, the Federal Magistrates Court
does not have jurisdiction to award an amount for loss or damage that exceeds:
(a) $750,000; or
(b) if another amount is specified in
the regulations—that other amount.
Note: For transfers from the Federal Court to the
Federal Magistrates Court: see section 32AB of the Federal Court of
Australia Act 1976.
138B
Conferring jurisdiction on State and Territory Courts
(1) Jurisdiction is conferred on the several
courts of the States and Territories in relation to any matter arising under
this Part or the Australian Consumer Law in respect of which a civil proceeding
is instituted by a person other than the Commonwealth Minister or the
Commission.
(2) However, subsection (1) does not
apply in relation to a matter arising under:
(a) Division 3 of Part 3‑1
of the Australian Consumer Law; or
(b) Part 3‑5 of the
Australian Consumer Law.
(3) The jurisdiction conferred by subsection (1)
on the several courts of the States is conferred within the limits of their
several jurisdictions, whether those limits are as to locality, subject matter
or otherwise.
(4) The jurisdiction conferred by subsection (1)
on the several courts of the Territories is conferred to the extent that the
Constitution permits.
(5) This section is not to be taken to enable
an inferior court of a State or a Territory to grant a remedy other than a
remedy of a kind that the court is able to grant under the law of that State or
Territory.
138C
Transfer of matters by the Federal Court
(1) Subject to subsections (2) and (3),
if:
(a) a civil proceeding instituted by a
person (other than the Commonwealth Minister or the Commission) is pending in
the Federal Court; and
(b) a matter for determination in the
proceeding arises under this Part or the Australian Consumer Law;
the Federal Court may, on the application of a party to
the proceeding or of its own motion, transfer the matter, and any other matter
for determination in the proceeding, to a court of a State or a Territory.
(2) The Federal Court must not transfer a
matter to another court under subsection (1) unless:
(a) the other court has power to grant
the remedies sought before the Federal Court in the matter; and
(b) it appears to the Federal Court
that:
(i) the matter arises out
of, or is related to, a proceeding that is pending in the other court; or
(ii) it is otherwise in the
interests of justice that the matter be determined by the other court.
(3) Subsection (1) does not apply in
relation to a matter arising under:
(a) Division 3 of Part 3‑1
of the Australian Consumer Law; or
(b) Part 3‑5 of the
Australian Consumer Law.
(4) If the Federal Court transfers a matter
to another court under subsection (1):
(a) further proceedings in the matter
must be as directed by the other court; and
(b) the judgment of the other court in
the matter is enforceable throughout Australia and the external Territories as
if it were a judgment of the Federal Court.
138D
Transfer of matters by a State or Territory court
(1) This section applies if:
(a) a proceeding is pending in a court
(other than the Supreme Court) of a State or a Territory; and
(b) a
matter for determination in the proceeding arises under this Part or the
Australian Consumer Law, other than under:
(i) Division 3 of
Part 3‑1 of the Australian Consumer Law; or
(ii) Part 3‑5 of
the Australian Consumer Law; or
(iii) Chapter 4 of the
Australian Consumer Law.
(2) The court must, if directed to do so by
the Federal Court, transfer to the Federal Court:
(a) the matter; and
(b) such other matters for
determination in the proceeding, the determination of which would (apart from
any law of a State or of the Northern Territory relating to cross‑vesting
of jurisdiction) be within the jurisdiction of the Federal Court, as the
Federal Court determines.
(3) Subject to subsection (4), the court
may, on the application of a party to the proceeding or of its own motion,
transfer the matter to a court (other than the Supreme Court) of another State
or Territory.
(4) The court (the first court)
must not transfer a matter to another court under subsection (3) unless:
(a) the other court has power to grant
the remedies sought before the first court in the matter; and
(b) it appears to the first court
that:
(i) the matter arises out
of, or is related to, a proceeding that is pending in the other court; or
(ii) it is otherwise in the
interests of justice that the matter be determined by the other court.
(5) If the court transfers a matter to
another court under subsection (3), further proceedings in the matter must
be as directed by the other court.
138E
Transfer of proceedings to Family Court
(1) If:
(a) a civil proceeding is pending in
the Federal Court; and
(b) a
matter for determination in the proceeding arises under this Part or the
Australian Consumer Law, other than under:
(i) Division 3 of
Part 3‑1 of the Australian Consumer Law; or
(ii) Part 3‑5 of
the Australian Consumer Law;
the Federal Court may, on the application of a party to
the proceeding or of its own motion, transfer the proceeding to the Family
Court.
(2) Subject to subsection (3), if a
proceeding is transferred to the Family Court under subsection (1):
(a) the Family Court has jurisdiction
to hear and determine the proceeding; and
(b) the Family Court also has
jurisdiction to hear and determine matters not otherwise within its
jurisdiction (whether because of paragraph (a) or otherwise):
(i) that are associated
with matters arising in the proceeding; or
(ii) that, apart from
subsection 32(1) of the Federal Court of Australia Act 1976, the Federal
Court would have had jurisdiction to hear and determine in the proceeding; and
(c) the Family Court may, in and in
relation to the proceeding:
(i) grant such remedies;
and
(ii) make orders of such
kinds; and
(iii) issue,
and direct the issue of, writs of such kinds;
as the Federal Court could have
granted, made, issued or directed the issue of, in and in relation to the
proceeding; and
(d) remedies, orders and writs
granted, made or issued by the Family Court in and in relation to the
proceeding have effect, and may be enforced by the Family Court, as if they had
been granted, made or issued by the Federal Court; and
(e) appeals lie from judgments of the
Family Court given in and in relation to the proceeding as if the judgments
were judgments of the Federal Court constituted by a single Judge of that
Court, and do not otherwise lie; and
(f) subject to paragraphs (a) to
(e) of this subsection, this Act, the regulations, the Federal Court of
Australia Act 1976, the Rules of Court made under that Act, and other laws
of the Commonwealth, apply in and in relation to the proceeding as if:
(i) a reference to the
Federal Court (other than in the expression the Court or a Judge)
included a reference to the Family Court; and
(ii) a reference to a Judge
of the Federal Court (other than in the expression the Court or a Judge)
included a reference to a Family Court Judge; and
(iii) a reference to the
expression the Court or a Judge when used in relation to the
Federal Court included a reference to a Family Court Judge sitting in Chambers;
and
(iv) a reference to a
Registrar of the Federal Court included a reference to a Registrar of the
Family Court; and
(v) any other necessary
changes were made.
(3) If any difficulty arises in the
application of paragraphs (2)(c), (d) and (f) in or in relation to a
particular proceeding, the Family Court may, on the application of a party to
the proceeding or of its own motion, give such directions, and make such
orders, as it considers appropriate to resolve the difficulty.
(4) An appeal does not lie from a decision of
the Federal Court in relation to the transfer of a proceeding under this Act to
the Family Court.
Division 9—Miscellaneous
139
Intervention by the Commission
(1) The Commission may, with the leave of a
court and subject to any conditions imposed by the court, intervene in any
proceeding instituted under this Part or the Australian Consumer Law.
(2) If the Commission intervenes in a
proceeding, the Commission is taken to be a party to the proceeding and has all
the rights, duties and liabilities of such a party.
139A
Terms excluding consumer guarantees from supplies of recreational services
(1) A term of a contract for the supply of
recreational services to a consumer by a person is not void under section 64
of the Australian Consumer Law only because the term excludes, restricts or
modifies, or has the effect of excluding, restricting or modifying:
(a) the application of all or any of
the provisions of Subdivision B of Division 1 of Part 3‑2 of
the Australian Consumer Law; or
(b) the exercise of a right conferred
by such a provision; or
(c) any liability of the person for a
failure to comply with a guarantee that applies under that Subdivision to the
supply.
(2) Recreational services are
services that consist of participation in:
(a) a sporting activity or a similar
leisure time pursuit; or
(b) any other activity that:
(i) involves a significant
degree of physical exertion or physical risk; and
(ii) is undertaken for the
purposes of recreation, enjoyment or leisure.
(3) This section does not apply unless the
exclusion, restriction or modification is limited to liability for:
(a) death; or
(b) a physical or mental injury of an
individual (including the aggravation, acceleration or recurrence of such an
injury of the individual); or
(c) the contraction, aggravation or
acceleration of a disease of an individual; or
(d) the coming into existence, the
aggravation, acceleration or recurrence of any other condition, circumstance,
occurrence, activity, form of behaviour, course of conduct or state of affairs
in relation to an individual:
(i) that is or may be
harmful or disadvantageous to the individual or community; or
(ii) that may result in
harm or disadvantage to the individual or community.
(4) This section does not apply if the
exclusion, restriction or modification would apply to significant personal
injury suffered by a person that is caused by the reckless conduct of the
supplier of the recreational services.
(5) The supplier’s conduct is reckless
conduct if the supplier:
(a) is aware, or should reasonably
have been aware, of a significant risk that the conduct could result in
personal injury to another person; and
(b) engages in the conduct despite the
risk and without adequate justification.
139B
Conduct of directors, employees or agents of bodies corporate
(1) If, in a proceeding under this Part or
the Australian Consumer Law in respect of conduct that is engaged in by a body
corporate and to which this Part or the Australian Consumer Law applies, it is
necessary to establish the state of mind of the body corporate, it is
sufficient to show:
(a) that a director, employee or agent
of the body corporate engaged in that conduct within the scope of the actual or
apparent authority of the director, employee or agent; and
(b) that the director, employee or
agent had that state of mind.
(2) Any conduct engaged in on behalf of a
body corporate:
(a) by a director, employee or agent
of the body corporate within the scope of the actual or apparent authority of
the director, employee or agent; or
(b) by
any other person:
(i) at the direction of a
director, employee or agent of the body corporate; or
(ii) with the consent or
agreement (whether express or implied) of such a director, employee or agent;
if the giving of the direction,
consent or agreement is within the scope of the actual or apparent authority of
the director, employee or agent;
is taken, for the purposes of this Part or the Australian
Consumer Law, to have been engaged in also by the body corporate.
139C
Conduct of employees or agents of persons other than bodies corporate
(1) If, in a proceeding under this Part or
the Australian Consumer Law in respect of conduct that is engaged in by a
person (the principal) other than a body corporate and to which
this Part or the Australian Consumer Law applies, it is necessary to establish
the state of mind of the principal, it is sufficient to show:
(a) that an employee or agent of the
principal engaged in that conduct within the scope of the actual or apparent
authority or the employee or agent; and
(b) the employee or agent had that
state of mind.
(2) Any conduct engaged in on behalf of a
person (the principal) other than a body corporate:
(a) by an employee or agent of the
principal within the scope of the actual or apparent authority of the employee
or agent; or
(b) by
any other person:
(i) at the direction of an
employee or agent of the principal; or
(ii) with the consent or
agreement (whether express or implied) of such an employee or agent;
if the giving of the direction,
consent or agreement is within the scope of the actual or apparent authority of
the employee or agent;
is taken, for the purposes of this Part or the Australian
Consumer Law, to have been engaged in also by the principal.
(3) If:
(a) a person other than a body
corporate is convicted of an offence; and
(b) subsection (1) or (2) applied
in relation to the conviction on the basis that the person was the principal
mentioned in that subsection; and
(c) the
person would not have been convicted of the offence if that subsection had not
been enacted;
the person is not liable to be punished by imprisonment
for that offence.
139D
Enforcement and recovery of certain fines
(1) If a person defaults in paying a fine
that has been imposed on the person for an offence against a provision of
Chapter 4 of the Australian Consumer Law or section 137G of this Act,
a court may:
(a) exercise any power that the court
has apart from this section in relation to the enforcement and recovery of the
fine; or
(b) make an order (the enforcement
order), on the application of the Commonwealth Minister or the Commission,
declaring that the fine is to have effect, and may be enforced, as if it were a
judgment debt under a judgment of the court.
(2) If:
(a) the court makes an enforcement
order; and
(b) the person gives security for the
payment of the fine;
the court must cancel the enforcement order.
(3) If the court makes an enforcement order,
the court may, at any time before the enforcement order is executed:
(a) allow the person a specified time
in which to pay the fine; or
(b) allow the person to pay the fine
by specified instalments.
(4) If the court allows the person a
specified time in which to pay the fine:
(a) the enforcement order must not be
executed unless the person fails to pay the fine within that time; and
(b) if the person pays the fine within
that time—the enforcement order is taken to have been discharged.
(5) If the court allows the person to pay the
fine by specified instalments:
(a) the enforcement order must not be
executed unless the person fails to pay such an instalment at or before the
time when it becomes payable; and
(b) if the person pays all those
instalments—the enforcement order is taken to have been discharged.
(6) The term of a sentence of imprisonment
imposed by an order under a law of a State or a Territory applied by section 15A
of the Crimes Act 1914 (including an order described in subsection
15A(1AA) of that Act) in respect of a fine is to be calculated at the rate of
one day’s imprisonment for each $25 of the amount of the fine that is from time
to time unpaid.
139DA
Application of section 229 of the Australian Consumer Law to a person
other than a body corporate
If, as a result of the operation of
Part 2.4 of the Criminal Code, a person other than a body corporate
is:
(a) convicted of an offence (the relevant
offence) against subsection 229(1) of the Australian Consumer Law; or
(b) convicted of an offence (the relevant
offence) against section 11.4 of the Criminal Code in
relation to an offence referred to in subsection 229(1) of the Australian
Consumer Law;
the relevant offence is taken to be punishable on
conviction by a fine not exceeding $550.
139E
Cessation of enforcement orders etc.
(1) Subject to this section, an enforcement
order in relation to a fine ceases to have effect:
(a) on payment of the fine; or
(b) if the fine is not paid—on full
compliance with the enforcement order.
(2) Subject to this section, if a person is
required under one or more enforcement orders to serve periods of imprisonment,
those periods must be served consecutively.
(3) If:
(a) a person would, but for this
subsection, be required under one or more enforcement orders that relate to 3
or more fines to serve periods of imprisonment that in aggregate are longer
than 3 years; and
(b) those
fines were imposed (whether or not in the same proceedings) for offences
constituted by contraventions:
(i) that occurred within a
period of 2 years; and
(ii) that appear to a court
to have been of the same nature or of a substantially similar nature;
the court must, by order, declare that the enforcement
order or orders cease to have effect in respect of those fines after the person
has served an aggregate of 3 years’ imprisonment.
(4) If subsection (3) would, but for
this subsection, apply to a person with respect to offences committed by the
person within 2 or more overlapping periods of 2 years, the court must make an
order under that subsection in relation to only one of those periods.
(5) The order under subsection (4) must
relate to the period which would give the person the maximum benefit under subsection (3).
(6) For the purposes of subsection (4),
the court may vary or revoke an order made under subsection (3).
139F
Compensation for acquisition of property
(1) If the operation of this Part (including
Schedule 2 as applied by this Part) would result in an acquisition of
property from a person otherwise than on just terms, the Commonwealth is liable
to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not
agree on the amount of the compensation, the person may institute proceedings
in the Federal Court for the recovery from the Commonwealth of such reasonable
amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
139G
Regulations
(1) The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by Schedule 2
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to that Schedule.
(2) Before the Governor‑General makes a
regulation for the purposes of paragraph 25(n) of Schedule 2 prescribing a
kind of term of a consumer contract, or a kind of effect that such a term has,
the Commonwealth Minister must take into consideration:
(a) the detriment that a term of that
kind would cause to consumers; and
(b) the impact on business generally
of prescribing that kind of term or effect; and
(c) the public interest.
(3) Before the Governor‑General makes a
regulation under subsection (1) for the purposes of paragraph 65(1)(a) of
Schedule 2 in relation to supplies of a particular kind, the Commonwealth Minister
must be satisfied that:
(a) the laws of the Commonwealth; and/or
(b) the laws of the States and
Territories;
adequately provide for consumer rights in relation to
supplies of that kind.
(4) The regulations may, either
unconditionally or subject to such conditions as are specified in the
regulations, exempt from the application of Schedule 2 or of specified
provisions of Schedule 2:
(a) conduct engaged in by a specified
organisation or body that performs functions in relation to the marketing of
primary products; or
(b) any of the following:
(i) a specified contract
or proposed contract made;
(ii) contracts included in
a specified class of contracts made;
(iii) specified conduct
entered into;
pursuant to or for the purposes
of a specified agreement, arrangement or understanding between the Government
of Australia and the Government of a foreign country; or
(c) prescribed conduct engaged in in
the course of a business carried on by the Commonwealth or by a prescribed
authority of the Commonwealth.
(5) Strict compliance with a form of
application or notice prescribed for the purposes of Schedule 2 is not,
and is taken never to have been, required and substantial compliance is, and is
taken always to have been, sufficient.
Part XIAA—Application of
the Australian Consumer Law as a law of a State or Territory
140
Definitions
In this Part:
application law means:
(a) a law of a participating
jurisdiction that applies the applied Australian Consumer Law, either with or
without modifications, as a law of the participating jurisdiction; or
(b) any regulations or other
legislative instrument made under a law described in paragraph (a); or
(c) the applied Australian Consumer
Law, applying as a law of the participating jurisdiction, either with or
without modifications.
applied Australian Consumer Law means
(according to the context):
(a) the text described in section 140B;
or
(b) that text, applying as a law of a
participating jurisdiction, either with or without modifications.
apply, in relation to the applied Australian
Consumer Law, means apply the applied Australian Consumer Law by reference:
(a) as in force from time to time; or
(b) as in force at a particular time.
Commonwealth entity means:
(a) an authority of the Commonwealth;
or
(b) an officer of the Commonwealth.
imposes a duty has the meaning given by
section 140G.
modifications includes additions, omissions
and substitutions.
officer, in relation to the Commonwealth,
includes the following:
(a) a Minister;
(b) a person who holds:
(i) an office established
by or under an Act; or
(ii) an appointment made
under an Act; or
(iii) an appointment made by
the Governor‑General or a Minister but not under an Act;
(c) a person who is a member or
officer of an authority of the Commonwealth;
(d) a person who is:
(i) in the service or
employment of the Commonwealth, or of an authority of the Commonwealth; or
(ii) employed or engaged
under an Act.
participating jurisdiction means a
participating State or participating Territory.
participating State means a State that is a
party to the Intergovernmental Agreement for the Australian Consumer Law and
applies the applied Australian Consumer Law as a law of the State, either with
or without modifications.
participating Territory means a Territory
that is a party to the Intergovernmental Agreement for the Australian Consumer
Law and applies the applied Australian Consumer Law as a law of the Territory,
either with or without modifications.
Territory means the Australian Capital
Territory or the Northern Territory.
140A
Object of this Part
The object of this Part is to facilitate
the application of the Australian Consumer Law by participating States and
participating Territories.
140B
The applied Australian Consumer Law
The applied Australian Consumer Law
consists of:
(a) Schedule 2; and
(b) the regulations made under section 139G
of this Act.
140C
Federal Court may exercise jurisdiction under application laws of Territories
The Federal Court may exercise
jurisdiction (whether original or appellate) conferred on that Court by an
application law of a Territory with respect to matters arising under the
applied Australian Consumer Law.
140D
Exercise of jurisdiction under cross‑vesting provisions
This Part does not affect the operation
of any other law of the Commonwealth, or any law of a State or Territory,
relating to cross‑vesting of jurisdiction.
140E
Commonwealth consent to conferral of functions etc. on Commonwealth entities
(1) An application law may confer functions
or powers, or impose duties, on a Commonwealth entity for the purposes of the
applied Australian Consumer Law.
Note: Section 140G sets out when such a law
imposes a duty on a Commonwealth entity.
(2) Subsection (1) does not authorise
the conferral of a function or power, or the imposition of a duty, by an
application law to the extent to which:
(a) the conferral or imposition, or
the authorisation, would contravene any constitutional doctrines restricting
the duties that may be imposed on the Commonwealth entity; or
(b) the authorisation would otherwise
exceed the legislative power of the Commonwealth.
(3) The Commonwealth entity cannot perform a
duty or function, or exercise a power, under an application law unless the
conferral of the function or power, or the imposition of the duty, is in
accordance with an agreement between the Commonwealth and the State or
Territory concerned.
140F
How duty is imposed
Application
(1) This section applies if an application
law purports to impose a duty on a Commonwealth entity.
Note: Section 140G sets out when such a law
imposes a duty on a Commonwealth entity.
State or Territory legislative power sufficient to
support duty
(2) The duty is taken not to be imposed by
this Act (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the
legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of
the State or Territory is consistent with the constitutional doctrines
restricting the duties that may be imposed on the entity.
Note: If this subsection applies, the duty will be
taken to be imposed by force of the law of the State or Territory (the
Commonwealth having consented under section 140E to the imposition of the
duty by that law).
Commonwealth legislative power sufficient to support
duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the
purported imposition of the duty, it is necessary that the duty be imposed by a
law of the Commonwealth (rather than by the law of the State or Territory), the
duty is taken to be imposed by this Act to the extent necessary to ensure that
validity.
(4) If, because of subsection (3), this
Act is taken to impose the duty, it is the intention of the Parliament to rely
on all powers available to it under the Constitution to support the imposition
of the duty by this Act.
(5) The duty is taken to be imposed by this
Act in accordance with subsection (3) only to the extent to which imposing
the duty:
(a) is within the legislative powers
of the Commonwealth; and
(b) is consistent with the
constitutional doctrines restricting the duties that may be imposed on the
entity.
(6) Subsections (1) to (5) do not limit
section 140E.
140G When
an application law imposes a duty
For the purposes of this Part, an
application law imposes a duty on a Commonwealth entity if:
(a) the law confers a function or
power on the entity; and
(b) the circumstances in which the
function or power is conferred give rise to an obligation on the entity to
perform the function or to exercise the power.
140H
Application laws may operate concurrently with this Act
This Act is not intended to exclude the
operation of any application law, to the extent that the application law is
capable of operating concurrently with this Act.
140J
No doubling‑up of liabilities
(1) If:
(a) an act or omission is an offence
against this Act and is also an offence against an application law; and
(b) the
offender has been punished for the offence under the application law;
the offender is not liable to be punished for the offence
against this Act.
(2) If a person has been ordered to pay a
pecuniary penalty under an application law, the person is not liable to a
pecuniary penalty under this Act in respect of the same conduct.
140K
References in instruments to the Australian Consumer Law
(1) A reference in any instrument to the
Australian Consumer Law is a reference to:
(a) the Australian Consumer Law as
applied under Division 2 of Part XI; and
(b) the applied Australian Consumer
Laws of any or all of the participating jurisdictions.
(2) Subsection (1) has effect except so
far as the contrary intention appears in the instrument or the context of the
reference otherwise requires.
Schedule 3—Amendment of the Corporations legislation
Australian Securities and Investments
Commission Act 2001
1 Subsection 12BA(1)
Insert:
assert a right to payment has the meaning
given by section 12BEA.
2 Subsection 12BA(1) (definition of infringement notice
provision)
Omit “, subsection 12DC(2)”.
3 Subsection 12BA(1) (definition of misleading)
Omit “has”, substitute “includes”.
4 Subsection 12BA(1) (paragraph (a) of the definition
of services)
Omit “Trade Practices Act 1974”, substitute “Competition
and Consumer Act 2010”.
5 Subsection 12BA(1)
Insert:
unsolicited financial products means
financial products supplied to a person without any request made by the person
or on the person’s behalf.
6 Section 12BB
Repeal the section, substitute:
12BB
Misleading representations with respect to future matters
(1) If:
(a) a person makes a representation
with respect to any future matter (including the doing of, or the refusing to
do, any act); and
(b) the person does not have
reasonable grounds for making the representation;
the representation is taken, for the purposes of
Subdivision D (sections 12DA to 12DN), to be misleading.
(2) For the purposes of applying subsection (1)
in relation to a proceeding concerning a representation made with respect to a
future matter by:
(a) a party to the proceeding; or
(b) any other person;
the party or other person is taken not to have had
reasonable grounds for making the representation, unless evidence is adduced to
the contrary.
(3) To avoid doubt, subsection (2) does
not:
(a) have the effect that, merely
because such evidence to the contrary is adduced, the person who made the
representation is taken to have had reasonable grounds for making the
representation; or
(b) have the effect of placing on any
person an onus of proving that the person who made the representation had
reasonable grounds for making the representation.
(4) Subsection (1) does not by
implication limit the meaning of a reference in this Division to:
(a) a misleading representation; or
(b) a representation that is
misleading in a material particular; or
(c) conduct that is misleading or is
likely or liable to mislead;
and, in particular, does not imply that a representation
that a person makes with respect to any future matter is not misleading merely
because the person has reasonable grounds for making the representation.
7 Subsection 12BC(1)
After “use” (wherever occurring), insert “or consumption”.
8 At the end of Subdivision B of Division 2 of Part 2
Add:
12BEA
Asserting a right to payment
(1) For the purposes of this Division, a
person is taken to assert a right to payment from another person
if the person:
(a) makes a demand for the payment or
asserts a present or prospective right to the payment; or
(b) threatens to bring any legal
proceedings with a view to obtaining the payment; or
(c) places or causes to be placed the
name of the other person on a list of defaulters or debtors, or threatens to do
so, with a view to obtaining the payment; or
(d) invokes or causes to be invoked
any other collection procedure, or threatens to do so, with a view to obtaining
the payment; or
(e) sends any invoice or other
document that:
(i) states the amount of
the payment; or
(ii) sets out the price of
unsolicited financial services; or
(iii) sets out the charge
for an advertisement, for financial services or financial products, that has
been published;
and does not contain a
statement, to the effect that the document is not an assertion of a right to a
payment, that complies with any requirements prescribed by the regulations.
(2) For the purposes of this section, an
invoice or other document purporting to have been sent by or on behalf of a
person is taken to have been sent by that person unless the contrary is
established.
9 Paragraph 12CC(2)(j)
Repeal the paragraph, substitute:
(j) if there is a contract between
the supplier and the service recipient for the supply of the financial
services:
(i) the extent to which
the supplier was willing to negotiate the terms and conditions of the contract
with the service recipient; and
(ii) the terms and
conditions of the contract; and
(iii) the conduct of the
supplier and the service recipient in complying with the terms and conditions
of the contract; and
(iv) any conduct that the
supplier or the service recipient engaged in, in connection with their
commercial relationship, after they entered into the contract; and
10 Paragraph 12CC(2)(ja)
Before “whether”, insert “without limiting paragraph (j),”.
11 Paragraph 12CC(3)(j)
Repeal the paragraph, substitute:
(j) if there is a contract between
the acquirer and the business supplier for the acquisition of the financial
services:
(i) the extent to which
the acquirer was willing to negotiate the terms and conditions of the contract
with the business supplier; and
(ii) the terms and
conditions of the contract; and
(iii) the conduct of the
acquirer and the business supplier in complying with the terms and conditions
of the contract; and
(iv) any conduct that the
acquirer or the business supplier engaged in, in connection with their
commercial relationship, after they entered into the contract; and
12 Paragraph 12CC(3)(ja)
Before “whether”, insert “without limiting paragraph (j),”.
13 Subsection 12CC(11) (definition of applicable industry
code)
Omit “Trade Practices Act 1974”, substitute “Competition
and Consumer Act 2010”.
14 Subsection 12CC(11) (definition of industry code)
Omit “Trade Practices Act 1974”, substitute “Competition
and Consumer Act 2010”.
15 Subsection 12DB(1)
Repeal the subsection, substitute:
(1) A person must not, in trade or commerce,
in connection with the supply or possible supply of financial services, or in
connection with the promotion by any means of the supply or use of financial
services:
(a) make a false or misleading
representation that services are of a particular standard, quality, value or
grade; or
(b) make a false or misleading
representation that a particular person has agreed to acquire services; or
(c) make a false or misleading
representation that purports to be a testimonial by any person relating to
services; or
(d) make a false or misleading
representation concerning:
(i) a testimonial by any
person; or
(ii) a representation that
purports to be such a testimonial;
relating to services; or
(e) make a false or misleading
representation that services have sponsorship, approval, performance
characteristics, uses or benefits; or
(f) make a false or misleading
representation that the person making the representation has a sponsorship,
approval or affiliation; or
(g) make a false or misleading
representation with respect to the price of services; or
(h) make a false or misleading
representation concerning the need for any services; or
(i) make
a false or misleading representation concerning the existence, exclusion or
effect of any condition, warranty, guarantee, right or remedy (including an
implied warranty under section 12ED); or
(j) make
a false or misleading representation concerning a requirement to pay for a
contractual right that:
(i) is wholly or partly
equivalent to any condition, warranty, guarantee, right or remedy (including an
implied warranty under section 12ED); and
(ii) a person has under a
law of the Commonwealth, a State or a Territory (other than an unwritten law).
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(1A) For the purposes of applying subsection (1)
in relation to a proceeding concerning a representation of a kind referred to
in paragraph (1)(c) or (d), the representation is taken to be misleading
unless evidence is adduced to the contrary.
(1B) To avoid doubt, subsection (1A) does
not:
(a) have the effect that, merely
because such evidence to the contrary is adduced, the representation is not
misleading; or
(b) have the effect of placing on any
person an onus of proving that the representation is not misleading.
16 Subsection 12DC(2)
Repeal the subsection.
Note: The heading to section 12DC is altered by
omitting “representations and other misleading or offensive conduct”,
and substituting “or misleading representations”.
17 Subsection 12DC(2B)
Repeal the subsection.
18 Subsection 12DC(2C)
Omit “paragraphs (2)(b) and (2A)(b)”, substitute “paragraph (2A)(b)”.
19 Paragraph 12DE(1)(a)
Omit “gifts, prizes or other free items”, substitute “any rebate,
gift, prize or other free item”.
Note: The heading to section 12DE is altered by
omitting “gifts and prizes”, and substituting “rebates, gifts, prizes
etc.”.
20 Paragraph 12DE(1)(b)
Repeal the paragraph, substitute:
(b) the person offers the rebate,
gift, prize or other free item in trade or commerce, in connection with:
(i) the supply or possible
supply of financial services; or
(ii) the promotion by any
means of the supply or use of financial services; or
(iii) the sale or grant, or
the possible sale or grant, of a financial product that consists of, or
includes, an interest in land; or
(iv) the promotion by any
means of a financial product that consists of, or includes, an interest in
land; and
21 Paragraph 12DE(1)(c)
Omit “them” (wherever occurring), substitute “it”.
22 After subsection 12DE(2)
Insert:
(2A) A person contravenes this subsection if:
(a) the person offers any rebate,
gift, prize or other free item; and
(b) the person offers the rebate,
gift, prize or other free item in trade or commerce, in connection with:
(i) the supply or possible
supply of financial services; or
(ii) the promotion by any
means of the supply or use of financial services; or
(iii) the sale or grant, or
the possible sale or grant, of a financial product that consists of, or
includes, an interest in land; or
(iv) the promotion by any
means of a financial product that consists of, or includes, an interest in
land; and
(c) the person fails, within the time
specified in the offer or (if no such time is specified) within a reasonable
time after making the offer, to provide the rebate, gift, prize or other free
item in accordance with the offer.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2B) Subsection (2A) does not apply if:
(a) the person’s failure to provide
the rebate, gift, prize or other free item in accordance with the offer was due
to the act or omission of another person, or to some other cause beyond the
person’s control; and
(b) the person took reasonable
precautions and exercised due diligence to avoid the failure.
(2C) Subsection (2A) does not apply to an
offer that the person makes to another person if:
(a) the person offers to the other
person a different rebate, gift, prize or other free item as a replacement; and
(b) the other person agrees to receive
the different rebate, gift, prize or other free item.
(2D) For the purposes of the application of the Criminal
Code in relation to subsection (2A), paragraph (2A)(b) is taken
to be a circumstance in which the conduct described in paragraph (2A)(a)
occurs.
23 Subsection 12DE(3)
Omit “paragraph (1)(b)”, substitute “paragraphs (1)(b)
and (2A)(b) and (c)”.
24 At the end of section 12DE
Add:
(4) In this section:
interest, in relation to land, has the same
meaning as in subsection 12DC(3).
25 At the end of subsection 12DM(1)
Add “or unsolicited financial products”.
Note: The heading to section 12DM is altered by
adding at the end “etc.”.
26 After subsection 12DM(1A)
Insert:
(1AA) A person must not, in trade or commerce, send
to another person an invoice or other document that:
(a) states the amount of a payment, or
sets out the charge, for supplying unsolicited financial services or
unsolicited financial products; and
(b) does not contain a warning
statement that complies with the requirements set out in the regulations.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(1AB) Subsection (1AA) does not apply if the
person had reasonable cause to believe that there was a right to the payment or
charge.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1AB), see subsection 13.3(3) of the Criminal
Code.
27 Subsection 12DM(1B)
After “subsection (1)”, insert “or (1AA)”.
28 Subsections 12DM(2) and (3)
Repeal the subsections.
29 After section 12DM
Insert:
12DMA
Liability of recipient for unsolicited financial services etc.
If a person, in trade or commerce,
supplies unsolicited financial services or unsolicited financial products to
another person, the other person:
(a) is not liable to make any payment
for the services or products; and
(b) is not liable for loss or damage
as a result of the supply of the services or products.
12DMB
Assertion of right to payment for unauthorised advertisements
(1) A person must not assert a right to
payment from another person of a charge for placing, in a publication, an
advertisement, for financial services or financial products, relating to:
(a) the other person; or
(b) the other person’s profession,
business, trade or occupation;
unless the person knows, or has reasonable cause to
believe, that the other person authorised the placing of the advertisement.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2) A person must not send to another person
an invoice or other document that:
(a) states the amount of a payment, or
sets out the charge for placing, in a publication, an advertisement, for
financial services or financial products, relating to:
(i) the other person; or
(ii) the other person’s profession,
business, trade or occupation; and
(b) does not contain a warning
statement that complies with the requirements set out in the regulations;
unless the person knows, or has reasonable cause to
believe, that the other person authorised the placing of the advertisement.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(3) Subsections (1) and (2) do not apply
to an advertisement that is placed in a publication published by a person who
is:
(a) the publisher of a publication
that has an audited circulation of 10,000 copies or more per week, as confirmed
by the most recent audit of the publication by a body specified in the
regulations; or
(b) a body corporate related to such a
publisher; or
(c) the Commonwealth, a State or a
Territory, or an authority of the Commonwealth, a State or a Territory; or
(d) a person specified in the
regulations.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3): see subsection 13.3(3) of the
Criminal Code.
(4) A person:
(a) is not liable to make any payment
to another person; and
(b) is entitled to recover by action
in a court of competent jurisdiction against another person any payment made by
the person to the other person;
in full or part satisfaction of a charge for placing, in a
publication, an advertisement for financial services or financial products,
unless the person has authorised the publishing of the advertisement.
(5) A person is not taken for the purposes of
this section to have authorised the placing, in a publication, of an
advertisement, unless:
(a) a document authorising the placing
of the advertisement has been signed by the person or by another person
authorised by him or her; and
(b) a copy of the document has been
given to the person before the right to payment of a charge for the placing of
the advertisement is asserted; and
(c) the document specifies:
(i) the name and address
of the person placing the advertisement; and
(ii) particulars of the
advertisement; and
(iii) the amount of the
charge for the placing of the advertisement, or the basis on which the charge
is, or is to be, calculated.
(6) In a proceeding against a person in
relation to a contravention of this section, the person bears the onus of
proving that the person knew or had reasonable cause to believe that the person
against whom a right to payment was asserted had authorised the placing of the
advertisement.
30 Section 12DN
Repeal the section, substitute:
12DN
Application of provisions of this Division to information providers
General rule
(1) Sections 12DA, 12DB, 12DC and 12DF
do not apply to a publication of matter by an information provider if:
(a) in any case—the information
provider made the publication in the course of carrying on a business of
providing information; or
(b) if the information provider is the
Australian Broadcasting Corporation, the Special Broadcasting Service
Corporation or the holder of a licence granted under the Broadcasting
Services Act 1992—the publication was by way of a radio or television
broadcast by the information provider.
Exception—advertisements
(2) Subsection (1) does not apply to a
publication of an advertisement.
Exception—information provider connected with supply of
financial services
(3) Subsection (1) does not apply to a
publication of matter in connection with the supply or possible supply of, or
the promotion by any means of the supply or use of, financial services (the publicised
financial services), if:
(a) the publicised financial services
were services of a kind supplied by the information provider or, if the
information provider is a body corporate, by a body corporate that is related
to the information provider; or
(b) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a person who
supplies financial services of the same kind as the publicised financial
services; or
(c) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a body
corporate that is related to a body corporate that supplies financial services
of the same kind as the publicised financial services.
Exception—information provider connected with sale etc.
of financial products consisting of etc. interests in land
(4) Subsection (1) does not apply to a
publication of matter in connection with the sale or grant, or possible sale or
grant, of financial products that consist of, or include, interests in land, or
the promotion by any means of the sale or grant of financial products that
consist of, or include, interests in land (the publicised financial
products), if:
(a) the publicised financial products
were interests of a kind sold or granted by the information provider or, if the
information provider is a body corporate, by a body corporate that is related
to the information provider; or
(b) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a person who
sells or grants financial products of the same kind as the publicised financial
products; or
(c) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a body
corporate that is related to a body corporate that sells or grants financial
products of the same kind as the publicised financial products.
Definitions
(5) In this section:
information provider means a person who
carries on a business of providing information.
interest, in relation to land, has the same
meaning as in subsection 12DC(3).
(6) Without limiting subsection (5),
each of the following is an information provider:
(a) the holder of a licence granted
under the Broadcasting Services Act 1992;
(b) a person who is the provider of a
broadcasting service under a class licence under that Act;
(c) the holder of a licence continued
in force by section 5(1) of the Broadcasting Services (Transitional
Provisions and Consequential Amendments) Act 1992;
(d) the Australian Broadcasting
Corporation;
(e) the Special Broadcasting Service
Corporation.
31 Section 12GXC (table item 2)
Omit “, subsection 12DC(2)”.
32 Paragraphs 102(2)(e) and (2B)(b)
Omit “Trade Practices Act 1974”, substitute “Competition
and Consumer Act 2010”.
Corporations Act 2001
33 Section 206EA
Repeal the section, substitute:
206EA
Disqualification under the Competition and Consumer Act 2010 etc.
A person is disqualified from managing
corporations if a court order disqualifying the person from managing
corporations is in force under:
(a) section 86E of the Competition
and Consumer Act 2010; or
(b) section 248 of Schedule 2
to that Act, as that section applies as a law of the Commonwealth, a State or a
Territory.
34 At the end of subsection 1349(1)
Add:
; or (o) an order under section 12GLD
of the ASIC Act.
35 At the end of subsection 1349(3)
Add:
; or (m) an order under section 12GLD of
the ASIC Act.
36 At the end of subsection 1349(4)
Add:
; or (j) an order under section 12GLD
of the ASIC Act.
Schedule 4—Enforcement of industry codes
Trade Practices Act 1974
1 Before section 51ACA
Insert:
Division 1—Preliminary
2 Subsection 51ACA(1)
Insert:
related contravention: a person engages in
conduct that constitutes a related contravention of an applicable
industry code, if the person:
(a) aids, abets, counsels or procures
a corporation to contravene the applicable industry code; or
(b) induces, whether by threats or
promises or otherwise, a corporation to contravene the applicable industry
code; or
(c) is in any way, directly or
indirectly, knowingly concerned in, or party to, a contravention by a
corporation of the applicable industry code; or
(d) conspires with others to effect a
contravention by a corporation of the applicable industry code.
3 Before section 51AD
Insert:
Division 2—Contravention of industry codes
4 After section 51AD
Insert:
Division 3—Public warning notices
51ADA
Commission may issue a public warning notice
Commission may issue a public warning notice
(1) The Commission may issue to the public a
written notice containing a warning about the conduct of a person if:
(a) the Commission has reasonable
grounds to suspect that the conduct may constitute:
(i) if the person is a
corporation—a contravention of an applicable industry code by the corporation;
or
(ii) in any case—a related
contravention of an applicable industry code by the person; and
(b) the Commission is satisfied that
one or more persons has suffered, or is likely to suffer, detriment as a result
of the conduct; and
(c) the Commission is satisfied that
it is in the public interest to issue the notice.
Notice is not a legislative instrument
(2) A notice issued under subsection (1)
is not a legislative instrument.
Division 4—Orders to redress loss or damage suffered by non‑parties
etc.
51ADB
Orders to redress loss or damage suffered by non‑parties etc.
Orders
(1) If:
(a) a person engaged in conduct (the contravening
conduct) that:
(i) if the person was a
corporation—constituted a contravention of an applicable industry code; or
(ii) in any
case—constituted a related contravention of an applicable industry code; and
(b) the contravening conduct caused,
or is likely to cause, a class of persons to suffer loss or damage; and
(c) the class includes persons (non‑parties)
who are not, or have not been, parties to a proceeding (an enforcement
proceeding) instituted under Part VI in relation to the
contravening conduct;
any court having jurisdiction in the matter may, on the
application of the Commission, make such order or orders (other than an award
of damages) as the court thinks appropriate against a person referred to in subsection (2)
of this section.
Note: The orders that the court may make include all
or any of the orders set out in section 51ADC.
(2) An order under subsection (1) may be
made against:
(a) the person mentioned in paragraph (1)(a);
or
(b) a person involved in the
contravening conduct.
(3) A court must not make an order under subsection (1)
unless the court considers that the order will:
(a) redress, in whole or in part, the
loss or damage suffered by the non‑parties in relation to the contravening
conduct; or
(b) prevent or reduce the loss or
damage suffered, or likely to be suffered, by the non‑parties in relation
to the contravening conduct.
Application for orders
(4) An application may be made under subsection (1)
even if an enforcement proceeding in relation to the contravening conduct has
not been instituted.
(5) An application under subsection (1)
may be made at any time within 6 years after the day on which the cause of
action that relates to the contravening conduct accrues.
Determining whether to make an order
(6) In determining whether to make an order
under subsection (1) against a person referred to in subsection (2),
a court may have regard to the conduct of:
(a) the person; and
(b) the non‑parties;
in relation to the contravening conduct, since the
contravention occurred.
(7) In determining whether to make an order
under subsection (1), a court need not make a finding about either of the
following matters:
(a) which persons are non‑parties
in relation to the contravening conduct;
(b) the nature of the loss or damage
suffered, or likely to be suffered, by such persons.
When a non‑party is bound by an order etc.
(8) If:
(a) an order is made under subsection (1)
against a person; and
(b) the loss or damage suffered, or likely
to be suffered, by a non‑party in relation to the contravening conduct to
which the order relates has been redressed, prevented or reduced in accordance
with the order; and
(c) the non‑party has accepted
the redress, prevention or reduction;
then:
(d) the non‑party is bound by
the order; and
(e) any other order made under subsection (1)
that relates to that loss or damage has no effect in relation to the non‑party;
and
(f) despite any other provision of
this Act or any other law of the Commonwealth, or a State or Territory, no
claim, action or demand may be made or taken against the person by the non‑party
in relation to that loss or damage.
51ADC
Kinds of orders that may be made to redress loss or damage suffered by non‑parties
etc.
Without limiting subsection 51ADB(1),
the orders that a court may make under that subsection against a person (the respondent)
include all or any of the following:
(a) an order declaring the whole or
any part of a contract made between the respondent and a non‑party referred
to in that subsection, or a collateral arrangement relating to such a contract:
(i) to be void; and
(ii) if the court thinks
fit—to have been void ab initio or void at all times on and after such date as
is specified in the order (which may be a date that is before the date on which
the order is made);
(b) an order:
(i) varying such a
contract or arrangement in such manner as is specified in the order; and
(ii) if the court thinks
fit—declaring the contract or arrangement to have had effect as so varied on
and after such date as is specified in the order (which may be a date that is
before the date on which the order is made);
(c) an order refusing to enforce any
or all of the provisions of such a contract or arrangement;
(d) an order directing the respondent
to refund money or return property to a non‑party referred to in that
subsection;
(e) an order directing the respondent,
at his or her own expense, to repair, or provide parts for, goods that have
been supplied under the contract or arrangement to a non‑party referred
to in that subsection;
(f) an order directing the
respondent, at his or her own expense, to supply specified services to a non‑party
referred to in that subsection;
(g) an order, in relation to an
instrument creating or transferring an interest in land (within the meaning of
section 53A), directing the respondent to execute an instrument that:
(i) varies, or has the
effect of varying, the first‑mentioned instrument; or
(ii) terminates or
otherwise affects, or has the effect of terminating or otherwise affecting, the
operation or effect of the first‑mentioned instrument.
Division 5—Investigation power
51ADD
Commission may require corporation to provide information
(1) This section applies if a corporation is
required to keep, to generate or to publish information or a document under an
applicable industry code.
(2) The Commission may give the corporation a
written notice that requires the corporation to give the information, or to
produce the document, to the Commission within 21 days after the notice is
given to the corporation.
(3) The notice must:
(a) name the corporation to which it
is given; and
(b) specify:
(i) the information or
document to which it relates; and
(ii) the provisions of the
applicable industry code which require the corporation to keep, to generate or
to publish the information or document; and
(c) explain the effect of sections 51ADE,
51ADF and 51ADG.
(4) The notice may relate to more than one
piece of information or more than one document.
51ADE
Extending periods for complying with notices
(1) A corporation that has been given a
notice under section 51ADD may, at any time within 21 days after the
notice was given to the corporation, apply in writing to the Commission for an
extension of the period for complying with the notice.
(2) The Commission may, by written notice
given to the corporation, extend the period within which the corporation must
comply with the notice.
51ADF
Compliance with notices
A corporation that is given a notice
under section 51ADD must comply with it within:
(a) the period of 21 days specified in
the notice; or
(b) if the period for complying with
the notice has been extended under section 51ADE—the period as so
extended.
51ADG
False or misleading information etc.
(1) A corporation must not, in compliance or
purported compliance with a notice given under section 51ADD:
(a) give to the Commission false or
misleading information; or
(b) produce to the Commission
documents that contain false or misleading information.
(2) This section does not apply to:
(a) information that the corporation
could not have known was false or misleading; or
(b) the production to the Commission
of a document containing false or misleading information if the document is
accompanied by a statement of the corporation that the information is false or
misleading.
Division 6—Miscellaneous
5 Application provision
Division 4 of Part IVB of the Competition and
Consumer Act 2010, inserted by this Schedule, does not apply in relation to
contravening conduct that occurred before the commencement of this item.
Schedule 5—Other amendments of the Trade Practices Act 1974
1 Title
Omit “certain Trade Practices”, substitute “competition,
fair trading and consumer protection, and for other purposes”.
2 Section 1
Omit “Trade Practices Act 1974”, substitute “Competition
and Consumer Act 2010”.
Note: This item amends the short title of the Act. If
another amendment of the Act is described by reference to the Act’s previous
short title, that other amendment has effect after the commencement of this
item as an amendment of the Act under its amended short title (see section 10
of the Acts Interpretation Act 1901).
3 Subsection 4(1) (definition of Australian Consumer Law)
Repeal the definition, substitute:
Australian Consumer Law means Schedule 2
as applied under Subdivision A of Division 2 of Part XI.
4 Subsection 4(1) (definition of commencing date)
Repeal the definition.
5 Subsection 4(1) (definition of consumer contract)
Repeal the definition.
6 Subsection 4(1) (definition of enforcement proceeding)
Repeal the definition.
6A Subsection 4(1) (definition of Family Court Judge)
Repeal the definition.
7 Subsection 4(1) (definition of financial product)
Repeal the definition.
8 Subsection 4(1) (definition of financial service)
Repeal the definition.
9 Subsection 4(1) (definition of infringement notice)
Repeal the definition.
10 Subsection 4(1) (definition of infringement notice
compliance period)
Repeal the definition.
11 Subsection 4(1) (definition of infringement notice
provision)
Repeal the definition.
12 Subsection 4(1) (definition of non‑party
consumer)
Repeal the definition.
13 Subsection 4(1) (definition of personal injury)
Repeal the definition, substitute:
personal injury includes:
(a) pre‑natal injury; or
(b) impairment of a person’s physical
or mental condition; or
(c) disease;
but does not include an impairment of a person’s mental
condition unless the impairment consists of a recognised psychiatric illness.
14 Subsection 4(1) (definition of provision) (the
definition inserted by item 4 of Schedule 1 to the Trade Practices
Amendment (Australian Consumer Law) Act (No. 1) 2010)
Repeal the definition.
15 Subsection 4(1) (definition of rely on)
Repeal the definition.
16 Subsection 4(1) (definition of substantiation notice)
Repeal the definition.
17 Subsection 4(1) (definition of substantiation notice
compliance period)
Repeal the definition.
18 Subsection 4(1)
Insert:
this Act includes Schedule 2 to the
extent that it is applied under Subdivision A of Division 2 of Part XI.
19 Subsection 4(1) (definition of unfair)
Repeal the definition.
20 Subsection 4(1) (definition of unsolicited goods)
Repeal the definition.
21 Subsection 4(1) (definition of unsolicited services)
Repeal the definition.
22 Section 4KA
Repeal the section, substitute:
4KA
Definitions etc. that do not apply in Part XI or Schedule 2
Despite any other provision of this Act,
sections 4 to 4K do not affect the meaning of any expression used in Part XI
or Schedule 2, unless a contrary intention appears.
23 Sections 4KB and 4KC
Repeal the sections.
24 Section 4L
Omit “section 87, 87AAA or 87A”, substitute “section 51ADB
or 87”.
25 Paragraphs 5(1)(b) to (ea)
Repeal the paragraphs, substitute:
(b) Part XI;
(c) the Australian Consumer Law (other
than Part 5‑3);
26 Paragraph 5(1)(f)
Omit “, (c), (e) or (ea)”, substitute “or (c)”.
27 Subsection 5(3)
After “section 82”, insert “, or under section 236 of
the Australian Consumer Law,”.
28 Subsection 5(4)
After “or (1A)”, insert “, or under subsection 237(1) or 238(1)
of the Australian Consumer Law,”.
29 Paragraph 6(2)(a)
Omit “45DB, 55 or 75AZH”, substitute “45DB, or section 33 or
155 of the Australian Consumer Law,”.
30 Paragraph 6(2)(b)
Repeal the paragraph, substitute:
(b) the following provisions:
(i) sections 44ZZRF,
44ZZRG, 44ZZRJ, 44ZZRK, 45, 45B, 45D to 45EB (other than section 45DB), 46
and 46A;
(ii) Part VIII;
(iii) sections 31 and 43,
Division 3 of Part 3‑1, and sections 50, 153, 163, 164 and
168, of the Australian Consumer Law;
were, by express provision,
confined in their operation to engaging in conduct to the extent to which the
conduct takes place in the course of or in relation to:
(iv) trade or commerce
between Australia and places outside Australia; or
(v) trade or commerce among
the States; or
(vi) trade or commerce
within a Territory, between a State and a Territory or between 2 Territories;
or
(vii) the supply of goods or
services to the Commonwealth or an authority or instrumentality of the Commonwealth;
and
31 Paragraph 6(2)(c)
Omit “Division 2 of Part V”, substitute “Division 1
of Part 3‑2 of the Australian Consumer Law”
32 Paragraph 6(2)(c)
Omit “Division 2A of that Part or in Part VA to the
supply of goods”, substitute “Part 3‑5 or 5‑4 of the
Australian Consumer Law to the supply of goods or services”.
33 Paragraph 6(2)(c)
Omit “or the supply of goods”, substitute “or the supply of goods
or services”.
34 Paragraph 6(2)(ca)
Omit “Part 2”, substitute “Part 2‑3”.
35 Paragraph 6(2)(h)
After “or 151AJ”, insert “or in section 229 of the
Australian Consumer Law,”.
36 Subsection 6(3)
Omit “Part IVA, of Divisions 1, 1A and 1AA of Part V
and of Divisions 2 and 3 of Part VC”, substitute “Parts 2‑1,
2‑2, 3‑1 (other than Division 3), 3‑3, 3‑4, 4‑1
(other than Division 3), 4‑3, 4‑4 and 5‑3 of the
Australian Consumer Law”.
37 Paragraph 6(3)(a)
Omit “sections 55 and 75AZH”, substitute “sections 33
and 155 of the Australian Consumer Law”.
38 Paragraph 6(3)(b)
Omit “those provisions”, substitute “the provisions of Part XI”.
39 Subsection 6(3A)
Omit “Part 2”, substitute “Part 2‑3”.
40 Subsection 6(4)
Omit “Part IVA and of Division 1 (other than sections 53A
and 55) and Divisions 1AAA and 1AA of Part V and of Division 2
of Part VC (other than sections 75AZD, 75AZH and 75AZO)”, substitute
“Parts 2‑2, 3‑1 (other than sections 30 and 33), Part 4‑1
(other than sections 152, 155 and 164) and 5‑3 of the Australian
Consumer Law”.
41 Subsection 6(5)
Omit “section 73”, substitute “sections 279, 282 and 283
of the Australian Consumer Law”.
42 Subsection 6(5)
Omit “that section has”, substitute “those sections have”.
43 Subsection 6(5)
Omit “paragraph 73(6)(a)”, substitute “paragraphs 279(3)(a), 282(2)(a)
and 283(5)(a) of the Australian Consumer Law”.
44 Subsection 6(5)
Omit “the supplier had”, substitute “the supplier has”.
45 Subsection 6(6)
Repeal the subsection.
46 Section 6AA
Omit “, VC”.
47 Subsection 26(1)
Repeal the subsection, substitute:
(1) The Commission may, by resolution,
delegate:
(a) any of its functions and powers
under or in relation to Parts VI and XI and the Australian Consumer Law; and
(b) any of its powers under Part XII
that relate to those Parts or the Australian Consumer Law;
to a staff member of the Australian Securities and Investments
Commission within the meaning of section 5 of the Australian Securities
and Investments Commission Act 2001.
Note: The heading to section 26 is altered by
omitting “in relation to unconscionable conduct and consumer protection”
and substituting “of certain functions and powers”.
48 Paragraph 29(1A)(b)
Omit “section 65J, 65K, 65M or 65N”, substitute “Division 3
of Part XI”.
49 Parts IVA, V, VA and VC
Repeal the Parts.
50 Subsection 75B(1)
Omit “Part IV, IVA, IVB, V or VC, or of section 95AZN
or of the Australian Consumer Law”, substitute “Part IV or IVB, or of
section 95AZN”.
51 Sections 76E and 76F
Repeal the sections.
Note: The heading to section 76 is altered by
omitting “—restrictive trade practices etc.”.
52 Subsection 77(1)
Omit “or 76E”.
53 Subsection 77A(3) (definition of civil liability)
Omit “, or a pecuniary penalty under section 76E”.
54 Paragraph 78(a)
Repeal the paragraph, substitute:
(a) has contravened a provision of
Part IV (other than section 44ZZRF or 44ZZRG); or
Note: The heading to section 78 is altered by
omitting “or V or Australian Consumer Law”.
55 Subsection 79(1)
Omit “or a provision of Part VC”.
Note: The heading to section 79 is altered by
omitting “or Part VC etc.”.
56 Subsections 79(2), (3) and (4)
Repeal the subsections.
57 Subsection 79(5)
Omit “or a provision of Part VC”.
58 Subsection 79(6)
Repeal the subsection.
59 Subsection 79A(1)
Repeal the subsection, substitute:
(1) If:
(a) a fine has been imposed on a
person for:
(i) an offence against
section 44ZZRF, 44ZZRG, 154Q or 155; or
(ii) an offence against
section 149.1 of the Criminal Code that relates to Part XID;
and
(b) the person defaults in payment of
the fine;
a Court may:
(c) exercise any power that the Court
has apart from this section with respect to the enforcement and recovery of
fines imposed by the Court; or
(d) make an order, on the application
of the Minister or the Commission, declaring that the fine is to have effect,
and may be enforced, as if it were a judgment debt under a judgment of the
Court.
60 Subparagraph 79B(a)(i)
Omit “or 76E”.
61 Subparagraph 79B(a)(ii)
Omit “or Part VC”.
62 Paragraph 80(1)(a)
Repeal the paragraph, substitute:
(a) a contravention of a provision of:
(i) Part IV; or
(ii) Division 2 or 5
of Part IVB; or
63 Subsection 80(1C)
Repeal the subsection.
64 Subsection 82(1)
Omit “Subject to subsection (1AAA), a person”, substitute “A
person”.
65 Subsection 82(1)
Omit “Part IV, IVA, IVB or V or section 51AC, or a
provision of the Australian Consumer Law,”, substitute “Part IV or IVB”.
66 Subsections 82(1AAA) to (1B)
Repeal the subsections.
67 Subsection 82(2) (note)
Repeal the note.
68 Subsection 82(3)
Repeal the subsection.
69 Section 83
Omit “subsection 87(1A) or 87AAA(1)”, substitute “subsection 51ADB(1)
or 87(1A)”.
70 Section 83
Omit “or a provision of Part VC”.
71 Section 83
Omit “Part IV, IVA, IVB, V or VC, or of the Australian
Consumer Law,”, substitute “Part IV or IVB”.
72 Paragraphs 84(1)(b) and (3)(b)
Omit “Part IVA, IVB, V or VC, or a provision of the
Australian Consumer Law,”, substitute “Part IVB”.
73 Section 85
Repeal the section, substitute:
85
Defences
If, in any proceedings under this Part
against a person other than a body corporate, it appears to the Court that the
person has or may have:
(a) engaged in conduct in
contravention of a provision of Part IV; or
(b) engaged in conduct referred to in
paragraph 76(1)(b), (c), (d), (e) or (f);
but that the person acted honestly and reasonably and,
having regard to all the circumstances of the case, ought fairly to be excused,
the Court may relieve the person either wholly or partly from liability to any
penalty or damages on such terms as the Court thinks fit.
74 Subsection 86(1)
Omit “or has been instituted in relation to subsection 2(1) or 6(1)
of the Australian Consumer Law (as applied under Division 1 of Part XI)”.
75 Subsection 86(1A)
Omit “, Part IVA, Part IVB, Division 1, 1AAA, 1A
or 2A of Part V or Part VA, or a provision of the Australian Consumer
Law,”, substitute “or Part IVB”.
76 Subsection 86(2)
Omit “Part IVA or IVB or Division 1, 1A or 1AA of Part V,
or a provision of the Australian Consumer Law,”, substitute “Part IVB”.
77 Section 86AA
Omit “Part VA or”.
78 Paragraph 86A(1)(b)
Omit “Part IVA or IVB or Division 1, 1A or 1AA of Part V,
or a provision of the Australian Consumer Law”, substitute “Part IVB”.
79 Subsections 86A(4) to (7)
Repeal the subsections.
80 Section 86B
Repeal the section.
81 Subsection 86C(4) (paragraph (a) of the definition
of contravening conduct)
Repeal the paragraph, substitute:
(a) contravenes Part IV or IVB or
section 95AZN; or
82 Paragraph 86D(1)(a)
Omit “or 76E”.
83 Paragraph 86D(1)(b)
Omit “or Part VC”.
84 Section 86DA
Repeal the section.
85 Subsection 86E(1B)
Repeal the subsection.
86 Subsection 86E(2)
Omit “, (1A) or (1B)”, substitute “or (1A)”.
87 Subsection 86E(3)
Omit “or (1B)”.
88 Subsection 87(1)
Omit “Subject to subsection (1AA) but without limiting”,
substitute “Without limiting”.
89 Subsection 87(1)
Omit “or Part VC”.
90 Subsection 87(1)
Omit “Part IV, IVA, IVB, V or VC or of the Australian
Consumer Law”, substitute “Division 2 of Part IVB”.
91 Subsection 87(1A)
Omit “Subject to subsection (1AA) but without limiting the
generality of section 80 or 87AAA”, substitute “Without limiting the
generality of sections 51ADB and 80”.
92 Paragraph 87(1A)(a)
Omit “Part IVA, IVB, V or VC, or a provision of the
Australian Consumer Law”, substitute “Division 2 of Part IVB”.
93 Paragraph 87(1A)(b)
Omit “, IVA, IVB, V or VC, or a provision of the Australian
Consumer Law”, substitute “or Division 2 of Part IVB”.
94 Subsections 87(1AA) to (1AC)
Repeal the subsections.
95 Paragraph 87(1B)(a)
Omit “, IVA, IVB, V or VC, or a provision of the Australian
Consumer Law”, substitute “or Division 2 of Part IVB”.
96 Subsection 87(1C)
Omit “Part IV, IVA, IVB, V or VC, or a provision of the
Australian Consumer Law,”, substitute “Part IV or Division 2 of Part IVB”.
97 Subsections 87(1D), (2A) and (5A)
Repeal the subsections.
98 Subsection 87(6)
Repeal the subsection, substitute:
(6) In subsection (2), interest,
in relation to land, means:
(a) a legal or equitable estate or
interest in the land; or
(b) a right of occupancy of the land,
or of a building or part of a building erected on the land, arising by virtue
of the holding of shares, or by virtue of a contract to purchase shares, in an
incorporated company that owns the land or building; or
(c) a right, power or privilege over,
or in connection with, the land.
99 Subsection 87(7)
Repeal the subsection.
100 Sections 87AAA, 87AAB, 87A, 87AB, 87AC and 87CAA
Repeal the sections.
100A Subsection 87CB(1)
Omit “section 82”, substitute “section 236 of the
Australian Consumer Law”.
101 Subsection 87CB(1)
Omit “section 52”, substitute “section 18 of the Australian
Consumer Law”.
102 Section 87D (paragraph (a) of the definition
of plaintiff)
Omit “section 75AQ or paragraph 87(1A)(b)”, substitute
“paragraph 87(1A)(b), or under section 149 or paragraph 237(1)(b) of the
Australian Consumer Law”.
103 Subsection 87E(1)
Omit “this Act”, substitute “the Australian Consumer Law”.
104 Paragraph 87E(1)(a)
Omit “Part IVA, to Division 1A or 2A of Part V or
to Part VA”, substitute “Part 2‑2, 3‑3, 3‑4 or 3‑5,
or Division 2 of Part 5‑4, of the Australian Consumer Law”.
105 Parts VIC and VID
Repeal the Parts.
106 Subsection 89(6)
Omit “the Trade Practices Act 1974”, substitute “this
Act”.
107 Paragraph 95(2)(b)
Omit “section 65J or 65M”, substitute “Division 3 of
Part XI”.
108 Subsection 155AAA(21) (paragraph (a) of the definition
of core statutory provision)
Repeal the paragraph, substitute:
(a) a provision of Part IV, VII,
VIII, XI, XIB or XIC; or
109 Subsection 155AAA(21) (paragraph (c) of the
definition of core statutory provision)
After “regulations”, insert “made under section 172”.
110 Subsection 155AAA(21) (at the end of the definition of core
statutory provision)
Add:
; or (d) a provision of the Australian
Consumer Law (other than Part 5‑3); or
(e) a provision of the regulations
made under section 139G so far as it relates to a provision covered by paragraph (d).
111 Paragraph 157(1)(d)
Before “section 86C”, insert “, subsection 51ADB(1),”.
112 Paragraph 157(1)(d)
Omit “, 87AAA(1) or 87A(1)”.
113 After subsection 157(1)
Insert:
(1AA) Subject to subsections (1AB) and (1A),
if an application for an order against a person is made under:
(a) section 137F; or
(b) subsection 237(1), or section 246
or 247, of the Australian Consumer Law;
the Commission must, at the request of the person and upon
payment of the prescribed fee (if any), give the person:
(c) a copy of every document that has
been given to, or obtained by, the Commission in connection with the matter to
which the application relates and tends to establish the case of the person;
and
(d) a copy of any other document in
the possession of the Commission that comes to the attention of the Commission
in connection with the matter to which the application relates and tends to
establish the case of the person.
(1AB) Subsection (1AA) does not apply to a document
obtained from the person, or prepared by an officer or professional adviser of
the Commission.
114 Paragraph 162(1)(b)
Omit “section 65J, 65M, 90A, 93A or 151AZ”, substitute
“section 90 or 93A, Division 3 of Part XI or section 151AZ”.
115 Subparagraph 163A(1)(a)(i)
Repeal the subparagraph.
116 After paragraph 163A(1)(a)
Insert:
(aaa) a declaration in relation to the
operation or effect of any provision of the Australian Consumer law other than
Division 1 of Part 3‑2 or Part 5‑4; or
117 Paragraph 170(1)(a)
Omit “Part VA,”.
118 Paragraph 170(1)(a)
After “section 163A”, insert “, or under Part 3‑5
or Chapter 5 of the Australian Consumer Law”.
119 Paragraph 170(1)(c)
Omit “Part VA,”.
120 Paragraph 170(1)(c)
After “section 163A”, insert “, or under Part 3‑5
or Chapter 5 of the Australian Consumer Law”.
121 After paragraph 171(3)(c)
Insert:
(ca) the number of search warrants
issued by a judge under section 135Z or signed by a judge under section 136;
and
122 Paragraphs 171(3)(da) and (db)
After “search warrants”, insert “referred to in paragraph (ca)
or (d)”.
123 Paragraph 171(3)(dc)
Before “Part XID”, insert “section 133B or 133C,
Division 6 of Part XI or”.
124 Subsection 172(1)
After “permitted by this Act”, insert “(other than Schedule 2)”.
125 Subsection 172(1)
After “giving effect to this Act”, insert “(other than Schedule 2)”.
126 Subsection 172(1A)
Repeal the subsection.
127 Subsection 172(2)
After “Part IV” (wherever occurring), insert “or Schedule 2”.
128 Subsection 45DA(2) of Schedule 1 (note)
Omit “Trade Practices Act 1974”, substitute “Competition
and Consumer Act 2010”.
129 Paragraph 51(1)(a) of Schedule 1
Omit “Trade Practices Act 1974”, substitute “Competition
and Consumer Act 2010”.
Schedule 6—Amendment of other Acts to change references to the Trade
Practices Act 1974
Part 1—Bulk amendments
1 Amendment of Acts
The specified provisions of the Acts listed in this Part are
amended by omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
Administrative Decisions (Judicial
Review) Act 1977
2 Paragraphs 2(e) and (f) of Schedule 3
Agricultural and Veterinary Chemicals
Code Act 1994
3 Section 100
Airports Act 1996
4 Section 4
5 Subsection 147(2) (including the note) (wherever
occurring)
6 Subsection 147(3)
7 Section 148
Note: The heading to section 148 is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
8 Subsection 158(2) (including the note) (wherever
occurring)
9 Subsection 158(3)
10 Section 159
Note: The heading to section 159 is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
11 Subsection 171(1)
12 Subsection 171(2) (definition of goods)
13 Subsection 171(2) (definition of services)
14 Subsection 171(2) (definition of supply)
15 Sections 191 and 193
Note: The heading to section 193 is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
16 Section 241
17 Subsections 248(1) and (2)
Note: The heading to section 248 is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
Air Services Act 1995
18 Subsection 55(1)
Note: The heading to section 55 is altered by
omitting “Trade Practices Act” and substituting “Competition and
Consumer Act”.
19 Paragraph 55(2)(a)
20 Subsections 55(3), (4) and (5)
Anti‑Money Laundering and
Counter‑Terrorism Financing Act 2006
21 Section 5 (paragraphs (e) and (f) of the
definition of loan)
22 Subsection 6(2) (table items 10, 11, 12, and 13,
column headed “Provision of a designated service”)
23 Subsection 6(2) (paragraphs (b) and (c) of the cell
at table item 51, column headed “Provision of a designated service”)
Australian Communications and Media
Authority Act 2005
24 Subparagraph 8(1)(j)(vi)
Australian Energy Market Act 2004
25 Section 3 (definition of Australian Energy
Regulator)
26 Subsection 13A(1) (notes 2, 3 and 4)
Australian Maritime Safety Authority
Act 1990
27 Subsection 47(2)
28 Paragraph 47(4)(a)
29 Subsection 47(5)
30 Paragraph 47(7)(a)
31 Subsection 47(10)
Australian Postal Corporation Act
1989
32 Subsection 32(5)
33 Paragraph 32B(1)(da)
34 Subsection 32B(2)
35 Section 32D
Note: The heading to section 32D is altered by
omitting “Trade Practices Act” and substituting “Competition and
Consumer Act”.
36 Subsection 33A(6A)
37 Section 90E (paragraph (a) of the definition of
consumer protection law)
Banking Act 1959
38 Section 16AA
Note: The heading to section 16AA is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
39 Section 16AU
Note: The heading to section 16AU is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
Broadcasting Services Act 1992
40 Section 77
Note: The heading to section 77 is altered by
omitting “Trade Practices Act” and substituting “Competition and
Consumer Act”.
41 Paragraphs 96(5)(a) and 97(2)(a)
42 Subsection 97(3)
43 Section 116B
Note: The heading to section 116B is altered by
omitting “Trade Practices Act” and substituting “Competition and
Consumer Act”.
44 Section 130
Note: The heading to section 130 is altered by
omitting “Trade Practices Act” and substituting “Competition and
Consumer Act”.
45 Subsection 130B(8) (definition of supply)
46 Subsection 130BA(8) (definition of supply)
47 Subsection 130BB(8) (definition of supply)
Note: This item does not commence at all if Schedule 1
to the Broadcasting Legislation Amendment (Digital Television) Act 2010 does
not commence. (See table item 4 in subsection 2(1) of this Act.)
48 Subsection 130F(3) (definition of supply)
Crimes Act 1914
49 Paragraph 4AB(3)(a)
Customs Act 1901
50 Subsection 269U(9)
Do Not Call Register Act 2006
51 Section 4 (definition of acquire)
52 Section 4 (definition of goods)
53 Section 4 (definition of services)
54 Section 4 (paragraph (a) of the definition of supply)
Environment Protection and
Biodiversity Conservation Act 1999
55 Paragraph 524(3)(h)
Evidence and Procedure (New Zealand)
Act 1994
56 Subparagraph 14(2)(a)(iv)
Federal Court of Australia Act 1976
57 Paragraph 23AB(4)(a)
58 Section 23CD (note)
59 Section 32B (paragraphs (a) and (b) of the
definition of Australian proceeding)
60 Subsection 58DB(2A)
Financial Sector (Business Transfer
and Group Restructure) Act 1999
61 Subsections 43(6), (9) and (9A)
Health Insurance Commission (Reform
and Separation of Functions) Act 1997
62 Subsection 18(10) (definition of goods)
63 Subsection 18(10) (definition of services)
64 Subsection 18(10) (definition of supply)
65 Subsection 20(8) (definition of goods)
66 Subsection 20(8) (definition of services)
67 Subsection 20(8) (definition of supply)
Insurance Act 1973
68 Section 62ZN
Note: The heading to section 62ZN is altered by omitting
“Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
69 Section 62ZZV
Note: The heading to section 62ZZV is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
Jurisdiction of Courts (Cross‑vesting)
Act 1987
70 Subsection 3(1) (paragraphs (a) and (aa) of special
federal matter)
71 Subsection 3(4)
72 Paragraphs 4(4)(c) and (d)
Life Insurance Act 1995
73 Section 179A
Note: The heading to section 179A is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
Liquid Fuel Emergency Act 1984
74 Section 43 (including the note) (wherever occurring)
Note: The heading to section 43 is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
Medibank Private Sale Act 2006
75 Subparagraphs 20(11)(b)(i) and (12)(c)(i) of Schedule 2
Northern Territory National Emergency
Response Act 2007
76 Subsection 122(2)
Occupational Health and Safety Act
1991
77 Subsections 18(4), 19(3) and 20(2)
Occupational Health and Safety
(Maritime Industry) Act 1993
78 Section 18
Note: The heading to section 18 is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
79 Section 21
Note: The heading to section 21 is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
80 Section 26
Note: The heading to section 26 is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
Offshore Petroleum and Greenhouse Gas
Storage Act 2006
81 Subsections 12(5), 13(4) and 14(3) of Schedule 3
Patents Act 1990
82 Paragraphs 133(2)(b) and (5)(b) and 134(2)(b)
Payment Systems (Regulation) Act 1998
83 Subsection 18A(1)
Note: The heading to section 18A is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
Private Health Insurance Act 2007
84 Section 172‑5 (note)
85 Section 244‑20
Proceeds of Crime Act 2002
86 Section 338 (paragraph (ed) of the definition
of serious offence)
Protection of the Sea (Powers of
Intervention) Act 1981
87 Subsection 3(1) (definition of goods)
88 Subsection 3(1) (definition of services)
89 Subsection 3(1) (definition of supply)
Radiocommunications Act 1992
90 Paragraph 51(2)(d)
91 Section 68A
92 Subsections 71A(1) and 106A(1)
Note: The heading to section 106A is altered by
omitting “Trade Practices Act” and substituting “Competition and
Consumer Act”.
93 Section 114A
Note: The heading to section 114A is altered by
omitting “Trade Practices Act” and substituting “Competition and
Consumer Act”.
94 Section 118PF (note)
95 Sections 118PG and 312
Note: The heading to section 312 is altered by
omitting “Trade Practices Act” and substituting “Competition and
Consumer Act”.
Social Security (Administration) Act
1999
96 Section 123TC (definition of acquire)
97 Section 123TC (definition of goods)
98 Section 123TC (definition of service)
99 Section 123TC (definition of supply)
Spam Act 2003
100 Section 4 (definition of acquire)
101 Section 4 (definition of goods)
102 Section 4 (definition of services)
103 Section 4 (paragraph (a) of the definition of supply)
Sydney Airport Demand Management Act
1997
104 Section 5A
Note: The heading to section 5A is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
Telecommunications Act 1997
105 Subsections 3(1) and (2)
106 Section 7 (definition of ACCC official)
107 Section 7 (paragraphs (c), (d) and (e) of the
definition of ACCC’s telecommunications functions and powers)
108 Section 7 (paragraph (d) of the definition of ACMA’s
telecommunications powers)
109 Subsection 61A(5) (definition of eligible service)
110 Subsection 61A(5) (definition of substantial degree
of power)
111 Subsection 61A(5) (definition of telecommunications
market)
112 Section 62 (including the note) (wherever
occurring)
Note: The heading to section 62 is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
113 Subsection 69(7) (including the note) (wherever
occurring)
114 Subsection 69B(8)
115 Subsection 70(4) (including the note) (wherever
occurring)
116 Paragraph 70(5)(c)
117 Subsections 98(2), 102(6) and 103(3) (including the
notes) (wherever occurring)
118 Subsection 103(4)
119 Subsection 350A(5) (including the note) (wherever
occurring)
120 Subsection 367(7) (definition of engaging in conduct)
121 Subsection 384(1) (note)
122 Subsection 384(9) (definition of declared service)
123 Section 389
124 Subsection 458(6)
125 Section 483
Note: The heading to section 483 is altered by
omitting “Trade Practices Act” and substituting “Competition and
Consumer Act”.
126 Section 506
127 Paragraphs 564(3)(d) and (e)
128 Subsection 564(3) (notes 3 and 4)
129 Paragraphs 571(3)(d) and (e)
130 Subsection 571(3) (notes 3 and 4)
131 Subsection 589(6) (paragraph (b) of the definition
of this Act)
132 Subclause 17(3) of Schedule 1
133 Clause 45 of Schedule 1 (definition of active
declared service)
134 Clause 45 of Schedule 1 (definition of eligible
service)
135 Subclause 47(3) of Schedule 1
136 Clause 50 of Schedule 1 (definition of eligible
service)
137 Subclauses 50A(2) and (4) of Schedule 1
138 Subclause 27(6) of Schedule 3
Telecommunications (Consumer
Protection and Service Standards) Act 1999
139 Subsection 158C(3)
Telecommunications (Interception and
Access) Act 1979
140 Paragraphs 5D(5B)(a), (b), (c) and (d)
Trade Marks Act 1995
141 Section 6 (definition of Commission)
Trans‑Tasman Proceedings Act
2010
142 Subparagraphs 36(2)(a)(iv) and 81(2)(a)(i) and (ii)
Note: This item does not commence at all if section 3
of the Trans‑Tasman Proceedings Act 2010 does not commence. (See
table item 6 in subsection 2(1) of this Act.)
Water Act 2007
143 Paragraphs 100A(b) and 100D(b)
Wheat Export Marketing Act 2008
144 Section 5 (definition of access undertaking)
145 Section 5 (definition of port terminal service)
146 Subparagraph 24(1)(d)(i)
147 Paragraph 24(2)(c)
148 Subparagraph 24(2)(d)(i)
149 Paragraph 24(3)(a)
Part 2—Other amendments
Administrative Decisions (Judicial
Review) Act 1977
150 After paragraph 2(f) of Schedule 3
Insert:
(fa) an Act of a State, the Australian
Capital Territory or the Northern Territory that applies Schedule 2 to the
Competition and Consumer Act 2010 as a law of the State or Territory;
Agricultural and Veterinary Chemicals
Act 1994
151 Subsection 7(3)
Omit “section 65F of the Trade Practices Act 1974”,
substitute “section 122 of Schedule 2 to the Competition and
Consumer Act 2010, as that section applies as a law of the Commonwealth”.
Agricultural and Veterinary Chemicals
(Administration) Act 1992
152 Subsection 69H(3)
Omit “section 75AL of the Trade Practices Act 1974”,
substitute “section 148 of Schedule 2 to the Competition and
Consumer Act 2010, as that section applies as a law of the Commonwealth”.
Agricultural and Veterinary Chemicals
Code Act 1994
153 Section 106
Omit “Section 65R of the Trade Practices Act 1974”,
substitute “Section 128 of Schedule 2 to the Competition and
Consumer Act 2010, as that section applies as a law of the Commonwealth,”.
Note: The heading to section 106 is altered by
omitting “Trade Practices Act” and substituting “Competition and
Consumer Act”.
Airports Act 1996
154 Division 7 of Part 7 (heading)
Repeal the heading, substitute:
Division 7—Part supplements the Competition and Consumer Act 2010
155 Division 8 of Part 8 (heading)
Repeal the heading, substitute:
Division 8—Part supplements the Competition and Consumer Act 2010
156 Division 2 of Part 13 (heading)
Repeal the heading, substitute:
Division 2—Application of the access regime in Part IIIA of the
Competition and Consumer Act 2010
Anti‑Money Laundering and
Counter‑Terrorism Financing Act 2006
157 Section 5 (definition of credit card)
Omit “section 63A of the Trade Practices Act 1974”,
substitute “Schedule 2 to the Competition and Consumer Act 2010”.
158 Section 5 (definition of debit card)
Omit “section 63A of the Trade Practices Act 1974”,
substitute “Schedule 2 to the Competition and Consumer Act 2010”.
Banking Act 1959
159 Subdivision G of Division 2AA of Part II
(heading)
Repeal the heading, substitute:
Subdivision G—Exceptions to Part IV of the Competition and Consumer
Act 2010
Carriage of Goods by Sea Act 1991
160 Section 18
Omit “Division 2 of Part V of the Trade Practices
Act 1974”, substitute “Division 1 of Part 3‑2 of Schedule 2
to the Competition and Consumer Act 2010, as that Division applies as a
law of the Commonwealth,”.
Note: The heading to section 18 is altered by
omitting “Trade Practices Act 1974” and substituting “Competition
and Consumer Act 2010”.
Federal Court of Australia Act 1976
161 Section 33ZH
Repeal the section, substitute:
33ZH
Special provision relating to claims under Part VI of the Competition
and Consumer Act 2010 etc.
(1) For the purposes of the following
provisions, a group member in a representative proceeding is to be taken to be
a party to the proceeding:
(a) subsection 87(1) of the Competition
and Consumer Act 2010;
(b) subsection 238(1) of Schedule 2
to that Act, as that subsection applies as a law of the Commonwealth.
(2) An application by a representative party
in a representative proceeding under:
(a) subsection 87(1A) of the Competition
and Consumer Act 2010; or
(b) subsection 237(1) of Schedule 2
to that Act, as that subsection applies as a law of the Commonwealth;
is to be taken to be an application by the representative
party and all the group members.
Food Standards Australia New Zealand
Act 1991
162 Paragraph 13(1)(j)
Omit “Division 1A of Part V of the Trade Practices
Act 1974”, substitute “Part 3‑3 of Schedule 2 to the
Competition and Consumer Act 2010, as that Part applies as a law of the
Commonwealth”.
163 Paragraph 13(1)(j)
Omit “that Division”, substitute “that Part”.
Insurance Act 1973
164 Division 5 of Part VC (heading)
Repeal the heading, substitute:
Division 5—Exceptions to Part IV of the Competition and Consumer
Act 2010
Jurisdiction of Courts (Cross‑vesting)
Act 1987
165 Paragraph 10(b)
Omit “Part IVA or Division 1 or 1A of Part V of
the Trade Practices Act 1974”, substitute “Part 2‑2, 3‑1,
3‑3 or 3‑4 of Schedule 2 to the Competition and Consumer
Act 2010, as that Part applies as a law of the Commonwealth”.
Note: The heading to section 10 is altered by
omitting “Division 1 or 1A of Part V of the Trade Practices Act”
and substituting “the Australian Consumer Law”.
Motor Vehicle Standards Act 1989
166 Subsection 5(1)
Insert:
Australian Consumer Law means Schedule 2
to the Competition and Consumer Act 2010 as applied under Subdivision A
of Division 2 of Part XI of that Act.
167 Section 41
Omit “For the purpose of sections 65C (other than subsection
65C(8)) and 65F of the Trade Practices Act 1974”, substitute “For the
purpose of sections 106 and 122 (other than subsection 106(7)) of the
Australian Consumer Law”.
Note: The heading to section 41 is altered by
omitting “Trade Practices Act” and substituting “the Australian
Consumer Law”.
168 Section 41
Omit “prescribed consumer product safety standard”, substitute
“safety standard (within the meaning of the Australian Consumer Law)”.
National Transmission Network Sale
Act 1998
169 Section 3 (definition of access seeker)
Omit “Trade Practices Act”, substitute “Competition and Consumer
Act”.
170 Section 3
Insert:
Competition and Consumer Act means the Competition
and Consumer Act 2010.
171 Section 3 (paragraphs (a) and (b) of the
definition of telecommunications access regime)
Omit “Trade Practices Act”, substitute “Competition and Consumer
Act”.
172 Section 3 (definition of Trade Practices Act)
Repeal the definition.
173 Paragraphs 13(2)(a) and (c)
Omit “Trade Practices Act”, substitute “Competition and Consumer
Act”.
174 Subsections 16(1), (2), (3) and (4) and 17(1), (2) and
(3)
Omit “Trade Practices Act”, substitute “Competition and Consumer
Act”.
175 Section 25
Omit “Trade Practices Act”, substitute “Competition and Consumer
Act”.
Note: The heading to section 25 is altered by
omitting “Trade Practices Act” and substituting “Competition and
Consumer Act”.
Olympic Insignia Protection Act 1987
176 Subsection 2(1)
Insert:
Australian Consumer Law means Schedule 2
to the Competition and Consumer Act 2010 as applied under Subdivision A
of Division 2 of Part XI of that Act.
177 Subsection 9A(1)
Omit “Trade Practices Act 1974”, substitute “Australian
Consumer Law”.
Note: The heading to section 9A is altered by
omitting “Trade Practices Act 1974” and substituting “Australian
Consumer Law”.
178 Subsection 9A(1)
Omit “section 52 of that Act”, substitute “section 18
of the Australian Consumer Law”.
179 Paragraph 9A(1)(a)
Omit “paragraph 53(c) of that Act”, substitute “paragraph 29(1)(g)
of the Australian Consumer Law”.
180 Paragraph 9A(1)(b)
Omit “paragraph 53(d) of that Act”, substitute “paragraph 29(1)(h)
of the Australian Consumer Law”.
181 Subsection 9A(2)
Omit “Trade Practices Act 1974”, substitute “Australian
Consumer Law”.
182 Subsection 9A(2)
Omit “that Act”, substitute “the Australian Consumer Law”.
183 Subsection 48(2)
Omit “Trade Practices Act 1974”, substitute “Australian
Consumer Law”.
184 Subsection 48(2)
Omit “section 52 of that Act”, substitute “section 18
of the Australian Consumer Law”.
185 Paragraph 48(2)(a)
Omit “paragraph 53(c) of that Act”, substitute “paragraph 29(1)(g)
of the Australian Consumer Law”.
186 Paragraph 48(2)(b)
Omit “paragraph 53(d) of that Act”, substitute “paragraph 29(1)(h)
of the Australian Consumer Law”.
187 Subsection 48(4)
Omit “Trade Practices Act 1974”, substitute “Australian
Consumer Law”.
188 Subsection 48(4)
Omit “that Act”, substitute “the Australian Consumer Law”.
Radiocommunications Act 1992
189 Subdivision D of Division 1 of Part 3.2
(heading)
Repeal the heading, substitute:
Subdivision D—Rules about section 50 and related provisions of the
Competition and Consumer Act
Wheat Export Marketing Act 2008
190 Section 5
Insert:
Australian Consumer Law means Schedule 2
to the Competition and Consumer Act 2010 as applied under Subdivision A
of Division 2 of Part XI of that Act.
191 Subparagraphs 13(1)(c)(x) and 19(1)(c)(x)
Omit “or section 76 of the Trade Practices Act 1974”,
substitute “, section 76 of the Competition and Consumer Act 2010
or section 224 of the Australian Consumer Law”.
Schedule 7—Transitional matters
1 Definitions
In this Schedule:
Australian Consumer Law has the same meaning as in
Part XI of the Competition and Consumer Act 2010 as substituted by
Schedule 2 to this Act.
Commonwealth Minister has the same meaning as in
the Australian Consumer Law.
2 Declarations of goods to be unsafe goods
A notice under subsection 65C(5) of the Trade Practices Act
1974 that was in force immediately before the commencement of this item
continues in force after that commencement as if:
(a) it were an interim ban imposed
under section 109 of the Australian Consumer Law by the Commonwealth
Minister; and
(b) it starts on the day of that
commencement.
3 Permanent bans
A notice under subsection 65C(7) of the Trade Practices Act
1974 that was in force immediately before the commencement of this item
continues in force after that commencement as if it were a permanent ban
imposed under section 114 of the Australian Consumer Law.
4 Prescribed consumer product safety standards
A prescribed consumer product safety standard under section 65C
of the Trade Practices Act 1974 that was in force immediately before the
commencement of this item continues in force after that commencement as if it
were a safety standard made under section 104 of the Australian Consumer
Law.
5 Prescribed consumer product information standards
A prescribed consumer product information standard under section 65D
of the Trade Practices Act 1974 that was in force immediately before the
commencement of this item continues in force after that commencement as if it
were an information standard made under section 134 of the Australian
Consumer Law.
6 Acts or omissions that occurred before commencement
(1) The Trade Practices Act 1974 as in force
immediately before the commencement of this item continues to apply, after that
commencement, in relation to acts or omissions that occurred before that
commencement.
(2) Without limiting subitem (1), action may be
taken, under or in relation to Part VC or VI of that Act as so in force,
in relation to those acts or omissions.
7 Proceedings already commenced
(1) The Trade Practices Act 1974 as in force
immediately before the commencement of this item continues to apply to or in
relation to any proceedings, under or in relation to that Act, that were
commenced, but not concluded, before that commencement.
(2) However, to the extent that any such proceeding are
proceedings for an injunction under section 80 of that Act as so in force,
the proceedings are taken, after that commencement, to be proceedings for an
injunction under section 232 of the Australian Consumer Law.
8 Unfair contract terms
(1) Part 2‑3 of the Australian Consumer Law
applies to a contract entered into on or after the commencement of this item.
(2) That Part does not apply to a contract entered into
before that commencement. However:
(a) if the contract is renewed on or
after that commencement—that Part applies to the contract as renewed, on and
from the day (the renewal day) on which the renewal takes effect,
in relation to conduct that occurs on or after the renewal day; or
(b) if a term of the contract is
varied on or after that commencement, and paragraph (a) has not already
applied in relation to the contract—that Part applies to the term as varied, on
and from the day (the variation day) on which the variation takes
effect, in relation to conduct that occurs on or after the variation day.
(3) If paragraph (2)(b) applies to a term of a
contract, subsection 23(2) and section 27 of the Australian Consumer Law
apply to the contract.
(4) Despite paragraphs (2)(a) and (b) and subitem (3),
that Part does not apply to a contract, or a term of a contract, to the extent
that the operation of that Part would result in an acquisition of property
(within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise
than on just terms (within the meaning of that paragraph of the Constitution).
9 Requests for itemised bills
Section 101 of the Australian Consumer Law does not apply in
relation to a supply of services to the extent that the services were supplied
before the commencement of this item.
10 Pecuniary penalties—having regard to previous findings
The reference in paragraph 224(2)(c) of the Australian Consumer
Law to proceedings under Chapter 4 or Part 5‑2 of Schedule 2
includes a reference to proceedings, commenced before the commencement of this
item, under or in relation to:
(a) Part VC or VI of the Trade
Practices Act 1974; or
(b) equivalent provisions of a law of
a State or a Territory.
11 Regulations relating to professional standards laws
Regulations made for the purposes of section 87AB of the Trade
Practices Act 1974 that were in force immediately before the commencement
of this item have effect, after the commencement of this item, as if they had
been made for the purposes of section 137 of that Act as amended by this
Act.
12 General power for regulations to deal with transitional
matters
The Governor‑General may make regulations prescribing
matters of a transitional, application or saving nature in relation to the
amendments and repeals made by the Schedules to this Act.